Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Friday, December 13, 2013

Searching Questions, Part II

As I mentioned in my prior post, my Advanced Appellate Advocacy class grappled with the issue of whether a cellphone search incident to arrest but after a delay is constitutional. On the one hand, the California Court of Appeals in California v. Riley has held such a search valid on the grounds that a phone located on a person is “immediately associated with the arrestee” and therefore searchable on the scene or later without any exigency requirement. California v. Riley, 2013 WL 475242, D059840, (Cal. Ct. App. Feb. 8, 2013) (unpublished). On the other, U.S. v. Wurie held such a search invalid absent some showing that officer safety, evidence preservation, or other exigency exists. United States v. Wurie, 728 F.3d 1 (1st Cir. 2013). Both cases are currently before the U.S. Supreme Court.

In August, as I reviewed these two appellate cases and their attendant briefings, I was interested in the approaches these advocates took. In particular, in Wurie, the state argued entirely, without alternative or fallback, that the item was on Wurie’s person and was therefore “immediately associated” with him. No attempt was made to deal with: 1) the possibility that the First Circuit might classify it otherwise; 2) the broader arguments regarding the underlying issues of reasonable expectation of privacy; or 3) the lack of justifications for a search incident to arrest required by prior Supreme Court cases. There’s a sense of confidence and clarity in this approach. It provides an easy to follow legal analysis and a consistent narrative of how these searches are and should be viewed. Certainly, there are lower court analyses that support this reading of the law. Wurie’s counsel took a more layered approach providing the court with multiple avenues for providing the relief requested. While there are cases supporting these positions, they are fewer and more fragmented. Ultimately, the First Circuit took a very restrictive view of the search incident to arrest exception regarding cellphones.

My students took a variety of approaches at their oral arguments, which were held prior to submission of the briefs for educational reasons. (In my experience, preparing for oral arguments brings focus and understanding of the case that students rarely reach while writing the brief.)

Some features were common to nearly all arguments. Nearly every student, prosecution and defense alike, categorized the underlying drug transaction as a “small-time” drug deal. This was relevant to the case because it suggested how likely the defendant was to have accomplices who might pose a danger to officers or remotely destroy evidence on the phone. Similarly, most advocates bought into the dichotomy between “item immediately associated” and “item within the arrestee’s immediate control” emphasized by the district court opinion being appealed. Most students attempted to navigate the existing precedents, analogizing and distinguishing in a straightforward manner, and occasionally making forays into factual or legal curiosities within the case. Some made very effective cases for classifying the cellphone in one way or another.

I was impressed by two students who took approaches that relied less on this classification issue.  One student echoed the Wurie opinion’s historical argument and the analogy between cellphones and one’s entire home or warehouse. That argument very ably compared the government’s proposed rule as a limitless right to search similar to a general writ. If the categorical approach taken by Riley is adopted, the argument goes, any item becomes subject to search regardless of the privacy the owner or society attaches to it. A cellphone, a laptop, a terabyte hard drive, Google Glass, a FitBit (a device that records one’s physical state for fitness purposes), and anything else, however personal, become searchable not just by the officers on the scene but by a full team of law enforcement techs forever. Rather than argue about the classification of this item, whether because of its characteristics or location, the student sought to undermine the opponent’s proposed rule.

Another student, without tracking back quite so far in history or toward first principles, made a persuasive argument that the entire jurisprudence of classifying items as associated with a person or in one’s immediate control is misguided or at least misapplied. The right to search incident to arrest, the argument goes, is limited to the scope described by Chimel v. California, 395 U.S. 752 (1969) and United States v. Robinson, 414 U.S. 218 (1973), to preserve evidence and for the protection of officers. This is, essentially, the reasoning behind the Wurie decision. This student’s argument explored this premise to suggest that a warrantless search of items removed from the arrestee’s control for any significant period of time simply cannot meet the requirements of Chimel. This is particularly true where that period of time is equal or greater than that required to obtain a warrant.

Some students representing the state sought to argue that officer protection or evidence preservation was at issue, a difficult claim given the facts of Mr. Zach's case, but an interesting expansion beyond what the government in Wurie argued. Others got involved in whether the cellphone was classified as a container, a fact that matters in some of the precedents and which is an interesting metaphysical question. What does it mean to be container? To “contain” something else? Is the intangible data or means of access one can find in a cellphone “things” that can be contained in something else?  Ultimately, while these questions were interesting, they didn’t get at the root of the matter and even students who engaged with them moved on to more fundamental issues.

Perhaps the most interesting factual argument was over the nature of a smartphone and the police techniques available for preserving one until a warrant can be obtained. Coincidentally, the two students most informed on the capacity, capabilities, limitations, and prevalence of cellphones were pitted against each other in a lively argument about the nature of cellphones. For example, they debated whether any expectation of privacy was subjectively or objectively reasonable given cellphones’ computer-like features, lack of standard security measures, expansive personal data contained, significant personal access they allow, and widespread use. Likewise, they dug deep into the possible law enforcement alternatives to a delayed, warrantless search. Both employed considerable, well-supported facts, which helped educate the bench.

Finally, two advocates surprised me, albeit in different ways. One government counsel essentially argued the party line from Wurie, but he did so in an incredibly articulate manner, employing the phrases “characteristic-based principle” and “area-based principle.” The student argued both the precedential support for an area-based principle and the logic of it. When taken down the garden path of how broad this principle might be applied, he willingly walked all the way to the end, arguing the characteristics of the item were not determinative.  When pressed on whether safety or evidence preservation exigencies were required, he suggested they were not because a person has no reasonable expectation of privacy regarding items on his person at the time of arrest. While much of this tracks the state’s argument in Wurie, it was capably presented and cogently reasoned, and he developed a theme that was consistent and compelling.

The other surprising argument was also from a government counsel. She urged rejection of a special rule for cellphones noting that if cellphones were entitled to special protection that an address book or paper records were not, it would discriminate against lower income defendants, entitling the poor to lesser rights simply because they did not have the newest technology. I had not expected a social justice argument in favor of broad searches incident to arrest.

Overall, the students did quite well, and I was pleased with the variety and creativity of the arguments. I look forward to reading the briefs and, ultimately, hearing what the Court thinks about this issue.

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