Wednesday, December 11, 2013
Robert Zach was arrested one evening during a marijuana deal. Mr. Zach was in the process of selling a one-ounce bag of marijuana when two police officers interrupted the transaction, causing the buyer to drop the drugs and flee. Mr. Zach was accompanied by a third man who also fled the scene. Mr. Zach complied with the police officers’ demand to halt, and they arrested and searched him. The officers relieved Mr. Zach of his pocketknife, two other one-ounce bags of marijuana, and his cellphone. Then, the officers put Mr. Zach into the patrol car and returned to the station where he was booked.
At the station, one officer attended to Mr. Zach’s booking while the other helped manage a mass booking of protestors brought in by other officers. Forty-five minutes later, and roughly an hour after the arrest, one of the officers searched Mr. Zach’s phone. She searched his recent messages, contacts, and photos. Finding child pornography among his photos, she alerted the federal authorities, and Mr. Zach was charged with violating 18 U.S.C. § 2252A(b)(1).
Mr. Zach argued in a motion to suppress that the search violated the Fourth Amendment. The government defended the search as being incident to arrest. The district court acknowledged the split of authorities on how to classify the cellphone, noting that:
- most treat a cellphone as “an item immediately associated with a person,” similar to a wallet, piece of clothing, pager, or cigarette pack, which is broadly searchable, and
- only a few cases treat a cellphone as “an item within an arrestee’s immediate control,” which is searchable only when contemporaneously with the arrest or when some other exigency exists.
The district court classified Mr. Zach’s phone as an item associated with his person and found the search incident to arrest despite the time delay. Accordingly, it denied the motion to suppress.
What happened on appeal was not determined by a panel of circuit court judges or even by appellate counsel. It was the responsibility of my Advanced Appellate Advocacy students. This fictional case (based on terrific hypothetical by Professor Leslie Rose at Golden Gate Law) served as the semester-long project for my students. Arguments were held the week before Thanksgiving and briefs were due last Friday, which is an interesting coincidence given that the Supreme Court allegedly took up two related cases at its conference that day. (Note: Well, it was calendared, but consideration was delayed while the Court obtains the lower court record in Riley. My students recieved no such extension.)
Those two cases, U.S. v. Wurie and Riley v. California, present reviews of searches of cellphones incident to arrest. In Wurie, law enforcement conducted a very limited search (opening the phone, viewing its wallpaper image, and checking the call log) of an older model flip phone. In Riley, law enforcement conducted a broader search (text messages, photographs, and videos with audio) of a modern smartphone.
In Riley,the California Court of Appeals upheld the warrantless search because the cellphone taken from Riley was in his pocket and therefore “immediately associated with his person.” Being classified as an “item immediately associated with his person,” the court held the cellphone could be searched as incident to arrest, regardless of any delay or lack of exigency. People v. Riley, 2013 WL 475242, *6, D059840, (Cal. Ct. App. Feb. 8, 2013) (unpublished), review denied (May 1, 2013).
In Wurie, the First Circuit held the warrantless search unreasonable after a lengthy review of the Supreme Court and other federal jurisprudence on the issue. The First Circuit reasoned that searching a cellphone after a delay is no longer incident to arrest because it is not justified by either of the policy reasons for permitting a warrantless search: officer protection and evidence preservation. Moreover, the First Circuit found a significant expectation of privacy in cellphones, which it notes, are akin to a large container or luggage, which cannot be searched without a warrant once reduced to officers’ control, but rhetorically, the court went further and analogized cellphones to the “homes and warehouses” of America’s early colonists, the searches of which on general writs, prompted the passage of the Fourth Amendment in the first place. The First Circuit left open the possibility that where law enforcement could articulate either officer protection or evidence preservation, it might justify a search, but it viewed such instances as exceptions to the general rule that warrantless searches of cellphone contents are unlawful. United States v. Wurie, 728 F.3d 1, 6-13 (1st Cir. 2013).
The government’s appellate argument in Wurie was a formalist one: a cellphone taken off the person of an arrestee is “immediately associated with the arrestee’s person,” and therefore, searchable at any later time without any exigency. This is the same classification argument that succeeded in Riley. This approach is apparent in the Table of Contents of the government’s brief on appeal, which notes, “Wurie's cell phone was an item or 'container' immediately associated with his person.…Wurie's cell phone was seized from his person, not his reaching area; thus, its limited, warrantless search required no additional justification.” United States v. Wurie, Brief, 2012 WL 3546655, i-ii (1st Cir. 2013). It was also apparent at oral argument, when the state’s counsel conceded that the phone posed no threat to the officers (and seemingly that the possibility of evidence destruction was more arguable than actual). The state seemed to rely entirely on the distinction that the item was on his person and not merely in his reach. As such an item, the state asserted an “unqualified authority” to search the phone’s contents. Id. at 15-16.
Wurie’s counsel argued that the reasonable expectation of privacy in one’s cellphone contents is “very high” and that cellphone searches permit access by law enforcement into the most private details of one’s life, well-beyond that of other “items associated with a person.” United States v. Wurie, Brief, 2012 WL 1963650 (C.A.1). Wurie’s argument on appeal provided several bases to find the search unlawful, including: 1) treating cellphones as sui generis, or at least unlike prior “items associated with a person;” 2) rejection of the categorical approach that would treat all items on an arrestee as “items associated with the arrestee” because some items, such as cellphones, laptops, or other items are significantly broader or different than prior items classified this way; 3) treating the item as container, which would not be searchable after a delay and extended possession of the item by law enforcement; 4) reemphasizing the centrality of the warrant requirement, the requirement of an exception to be justified, and the touchstone of reasonableness in justifying any invasion of privacy.
I am interested to see how the Supreme Court resolves this issue, whether along the formalist classification lines of Riley or along the policy justification limitation lines of Wurie. I was also quite interested to see how my students would argue the issue. Would they follow the government’s classification argument? Would they attempt to distinguish the facts of Mr. Zach’s case by arguing officer safety or evidence destruction? Are there any creative alternatives that help the state? Can the defendant’s counsel overcome the weight of authority that hold differently than Wurie on a variety of analyses?
The students’ oral arguments revealed some interesting rhetorical and analytical approaches, which I’ll share in my next post. Before I do, what do you think is the reasonable expectation of privacy in your cellphone contents? How do you think the Supreme Court will (or should) resolve the issue? How would you approach this case as advocate for the state? For the defendant?