Last Friday the United States Court of Appeals for the First Circuit ruled a warrantless search of a cell phone during the arrest of a Boston man that contributed to his conviction on drug and weapon charges was unconstitutional. The decision adds to a growing court divide on whether access to digital devices and the personal information they often contain requires judicial oversight.
The court concluded:
Since the time of its framing, “the central concern underlying the Fourth Amendment” has been ensuring that law enforcement officials do not have “unbridled discretion to rummage at will among a person’s private effects.” Gant, 556 U.S. at 345; see also Chimel, 395 U.S. at 767-68. Today, many Americans store their most personal “papers” and “effects,” U.S. Const. amend. IV, in electronic format on a cell phone, carried on the person. Allowing the police to search that data without a warrant any time they conduct a lawful arrest would, in our view, create “a serious and recurring threat to the privacy of countless individuals.”
Brima Wurie was convicted by a jury in February 2010 of distribution of crack cocaine, possessing additional crack cocaine with intent to distribute, and being a felon-in-possession of a firearm. Officers allegedly observed Wurie engaging in a drug sale in a car, picked him up, and used information from one of the two cell phones on his person to discover his home address and obtain a warrant to search it, resulting in the additional weapon and drug charges. The government argued that Wurie’s phone was “indistinguishable from other kinds of personal possessions, like a cigarette package, wallet, pager, or address book” which are subject to the search incident to arrest exception to Fourth Amendment protections.
The U.S. Supreme Court ruled searches at the time of arrest without a warrant are permissible in United States v. Robinson, but that was before advent of mobile computing technology. There is significant legal question surrounding whether digital devices like cell phones and laptops can be searched in the course of an arrest because, as the opinion in the Wurie case notes, “individuals today store much more personal information on their cell phones than could ever fit in a wallet, address book, briefcase, or any of the other traditional containers” and the Fourth Amendment specifically guarantees papers and effects not be subject to warrantless searches.
The Florida Supreme Court ruled 7-2 that a similar police search of an arrested person’s phone without a warrant was unconstitutional earlier this month, but four other federal appeals court have ruled searching a cellphone found on someone arrested is fair game. In 2012 the United States Court of Appeals for the Ninth Circuit shut down suspicionless unwarranted searches of computers and other similar digital devices at the border, noting they served as “simultaneously offices and personal diaries.”