James Clifford Slick Basham v. United States, 811 F.3d 1026

Basham was arrested after a controlled methamphetamine sale; police seized at least one of two cell phones and searched its data incident to arrest. Data from that initial search was used in a later search-warrant affidavit.
A magistrate issued a warrant to search data from both of Basham's cell phones; Basham was indicted in the District of South Dakota and pleaded guilty to possession with intent to distribute pursuant to a plea agreement.
Basham did not appeal his conviction but filed a timely pro se § 2255 motion alleging ineffective assistance of counsel for failing to move to suppress the warrantless cell-phone data search; counsel was appointed and the district court denied relief without an evidentiary hearing.
The district court granted a certificate of appealability limited to whether trial counsel was ineffective for not moving to suppress the warrantless cell-phone data search incident to arrest.
On appeal, Basham argued Riley v. California later established such searches generally require a warrant and that Riley was sufficiently foreseeable that counsel should have moved to suppress.
The Eighth Circuit affirmed, finding counsel’s failure to file a suppression motion was not constitutionally deficient given the lack of controlling Eighth Circuit or Supreme Court precedent at the time and existing circuit authority supporting warrantless searches.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for not moving to suppress the warrantless search of cell-phone data incident to arrest	Basham: Riley shows such searches generally require a warrant; counsel should have anticipated and moved to suppress	Government: At the time, no binding Eighth Circuit/Supreme Court rule required a warrant; novel issue and counsel not ineffective for failing to raise it	Court: Counsel not deficient—issue was unsettled in this Circuit and precedent supported warrantless searches

Strickland v. Washington, 466 U.S. 668 (establishes ineffective-assistance two-prong test)
Riley v. California, 573 U.S. 373 (2014) (warrant requirement for most searches of digital information on cell phones)
United States v. Robinson, 414 U.S. 218 (1973) (scope of search-incident-to-arrest includes containers on person)
United States v. Mendoza, 421 F.3d 663 (8th Cir. 2005) (approved seizure/search of an arrestee's cell phone in this Circuit)
United States v. Finley, 477 F.3d 250 (5th Cir. 2007) (upheld warrantless cell-phone data search; only circuit authority on point pre-Riley)
Anderson v. United States, 393 F.3d 749 (8th Cir. 2005) (failure to raise novel argument usually not ineffective assistance)
Fields v. United States, 201 F.3d 1025 (8th Cir. 2000) (lack of Circuit or Supreme Court authority relevant to counsel performance)