United States v. Wurie

May STAHL, Circuit Judge.

This requires case tous decide whether police, after a cell seizing phone from part individual’s as of his lawful arrest, can search phone’s without data a warrant. We conclude that such a search exceeds the boundaries Fourth Amendment search-incident-to-ar- exception. rest Because the has argued that the search here was justified by exigent or any circumstances require- the warrant ment, we reverse the denial of defendant- appellant Brima sup- Wurie’s 'motion to conviction, press, his vacate and remand his case to the district court. Background I. Facts & evening September 5, 2007, On the Sergeant Detective Murphy Paul (BPD) Boston Police Department per- forming routine surveillance in South Bos- Wurie, ton. He observed Brima who was Altima, driving stop park- a Nissan in the store, ing lot of Lil Peach convenience pick up a man later identified Fred Wade, engage Murphy in what be- drug Murphy lieved was a sale in the car. BPD another officer subsequently stopped two plastic bags Wade and found pocket, containing each grams 3.5 crack he had admitted that cocaine.. Wade Gold, “B,” bought drugs Ian Assistant Federal Public De- the man driv- fender, appellant. ing the Altima. also offi- Wade told the he had been “cruis- and that in South Boston and chester “B” lived

cers that He ing denied around” South Boston. sold crack cocaine. store, Peach stopped at the Lil having officer, BPD a third notified Murphy ride, having a and having given anyone After the Altima.' Wurie following who was sold crack cocaine. car, officer arrested Wurie that parked the drug that Wurie was a deal- Suspecting cocaine, read him distributing crack address, er, his lying he was about and him to the Miranda warnings, took hidden at his drugs that he and at the Wurie arrived police station. When and, house, keys Murphy took Wurie’s keys, a of station, cell set phones, two officers, the went to Silver with other $1,275 him. taken from in cash were “my associated with the Street address arrived after Wurie to ten minutes Five of the at house” number. One mailboxes booked, station, before he was but the Wurie and that address listed names BPD noticed one two officers other apartment Through the first-floor Cristal. gray a LG phones, Verizon Wurie’s cell window, the saw a black woman officers calls receiving phone, repeatedly was picture looked like the woman whose who as house” on the “my a identified number phone wallpaper. appeared Wurie’s the front of caller ID screen on external apartment The officers entered the officers were able to see phone. The they a while obtained search “freeze” screen, “my ID and the house” the caller the apartment, warrant. Inside label, After five plain about more view. sleeping a child who looked like the found minutes, opened officers picture on Af- phone. child in the Wurie’s Immediately log. call look at Wurie’s warrant, obtaining ter officers a phone, the officers saw upon opening-the apartment, among seized from the other young black hold- photograph woman cocaine, grams of crack a fire- things, phone’s was set ing baby, arm, ammunition, marijuana, bags four < pressed The officers then “wallpaper.” paraphernalia, and cash. drug $250 phone,, one on the which allowed button charged possessing with with Wurie was log. The phone’s them to access the call distributing to distribute and co- intent incoming call calls from log. showed pos- a felon in being caine base and with “my pressed The officers one house.” He firearm and ammunition. session num- more button .to.determine suppress the a motion to evidence filed “my ber associated with the house” caller as a result of the warrantless obtained ID reference. phone; parties typed One of agreed that facts not the relevant were pages number into online white directo- evidentiary hearing and that an dispute ry, which revealed the address associ- unnecessary. The court de- was district ated with the number was on Silver Street suppress, motion to nied Wurie’s Boston, in South from where Wurie far. Wurie, F.Supp.2d just had car he was parked his before trial, and, (D.Mass.2009), four-day after a with arrested. name associated jury guilty Wurie on all three found Manny address Cristal. counts. He was sentenced to months appeal This followed. prison. gave then Sergeant Murphy Detective Wurie a new set of Miranda warnings Analysis II. questions. him a asked series Wurie said, considering the denial of motion among things, that he lived In district court’s suppress, in Dor- review the Speedwell an address on. Street findings legal inaugurated factual for clear error and its event which the resistance of de novo. -oppressions conclusions United States the colonies to the (1st Cir.2012). States, Kearney, country.” Boyd mother v. United 616, 625, 29 L.Ed. 746 protects The Fourth Amendment “[t]he (1886). right people to be secure in their houses, effects, persons, papers, and Today, a per warrantless search is se against sei- unreasonable searches and unreasonable under the Fourth Amend provides zures” “no and ment, Warrants unless “a specifically one of few issue, cause, shall but upon probable sup- established and exceptions” well-delineated affirmation, ported by particu- Oath or and 332, applies. Arizona v. 556 U.S. searched, larly describing place the to be 338, (2009) 1710, 129 S.Ct. 173 L.Ed.2d 485 persons things and the or to be seized.” States, (quoting Katz v. United 389 U.S. Const, U.S. amend. The 347, 357, IV. amendment 507, 88 S.Ct. 19 L.Ed.2d 576 grew out opposition (1967)) (internal of American colonial omitted). quotation marks practices, British search and seizure exceptions police, One of those allows the assistance, the notably most use of writs of arrest, when make a lawful to search gave customs officials broad latitude person “the arrestee’s and the area within houses, cellars, shops, warehous- 339, search his immediate control.” Id. at 129 es, places smuggled goods. California, S.Ct. 1710 (quoting Chimel v. Michael, Reading The M. Honorable Blane 2034, 395 89 S.Ct. 23 (internal the (1969)) Fourth Amendment: Guidance quotation L.Ed.2d 685 Birth, omitted). the Gave years, marks In recent courts Mischief (2010); gen- N.Y.U.L. Rev. 907-09- see grappled question have with the of wheth- erally Cuddihy, William J. The Fourth er exception the search-incident-to-arrest Origins Original Amendment: Mean- extends to data an within arrestee’s cell (2009). ing 602-1791 phone.1 Otis, lawyer James the challenged who legal landscape A. The case, of

use of writs a 1761 assistance famously practice described the as The. modern search-incident-to-arrest “plac[ing] liberty every emerged the of man in the doctrine from Chimel v. Califor every nia, petty hands of officer” and sounded (1969),

two main protect themes: the need to the in which Supreme L.Ed.2d the (what privacy of the home he called the held that a Court warrantless search House”), ... Privilege justified “fundamental Mi- defendant’s entire house was not chael, (citations supra, by and internal fact that part it occurred as omitted), quotation marks and “the valid arrest. The Court found that inevita- bility of exception permits abuse when officials search-incident-to-arrest arresting the sort discretion sanc- “to search for and unlimited officer writ,” any tioned id.. at 909. The Su- seize evidence on arrestee’s preme argu- has prevent Court described Otis’s order to its concealment or ment most “perhaps prominent and to search “the area into destruction” appeal, challenge 1. On Wurie does not notice of visible to information that, phone, seizure of his and he concedes on them the outside of and on its exception, plain under view see United case, incoming (including, screen Paneto, (1st house”). “my calls from Cir.2011), entitled officers were to take suspect A arrest suspect. custodial reach order to which an arrestee probable cause is reasonable evidentiary items.” Id. based grab weapon Amendment; Fourth intrusion under the justifications The lawful, a inci- being that intrusion exception, as articulated underlying the dent, additional requires to the arrest no safety and protecting officer were justification. of evidence. preservation ensuring 235, 94 S.Ct. 467. Id. at later, in United States years Four Robinson, 218, 94 S.Ct. following the Court decided year, (1973), Edwards, L.Ed.2d 427 Court . the search-ineident-to-ar- how examined Ed- 39 L.Ed.2d applies to searches of the rest suspicion burgla- arrested on wards was arrested for driv- person. Robinson was jail. ry at a local After and detained license, with and conduct- ing a revoked arrest, police realized Edwards’s down, an pat arresting a the officer felt ing clothing, wearing, which he was still identify Robin- object that he could not him tying the bur- paint chips contain to 220-23, 94 pocket. son’s Id. at S.Ct. coat police the of glary. The seized articles object, the 467. which turned He removed frag- them for clothing paint and examined package, and cigarette out to be a then felt 801-02, at 94 S.Ct. 1234. The ments. Id. that it con- package the and determined search, concluding that upheld Court the cigarettes. something than tained other that the items of apparent once it became Upon package, opening officer clothing might contain destructible evi- capsules heroin. Id. at crime, found fourteen of dence of a “the were entitled 223, 94 467. The held that the S.Ct. Court take, examine, preserve to them for and cigarette pack- search of the evidence, warrantless normally just use as as valid, explaining that age was when permitted to seize evidence crime authority to conduct “a full 806, lawfully 94 encountered.” Id. to person” search of the incident a lawful S.Ct. 1234. 235,

arrest. 94 467. Id. at S.Ct. again addressed the search- The Court principle, reiterated the dis- Robinson exception in incident-torarrest United justification Chadwick, “[t]he cussed 97 S.Ct. authority to inci- or for search (1977), reason abrogated L.Ed.2d 538 53 quite dent to a lawful arrest rests much Acevedo, grounds by other California suspect on the to disarm the in order need 500 111 114 L.Ed.2d S.Ct. custody to him as it take into does on (1991), this that not emphasizing time to on his preserve person need evidence all undertaken in the warrantless searches trial.” for later use at Id. at 94 S.Ct. arrest are constitu- context of custodial However, the 467. Court also said the Chadwick, In the de- tionally reasonable. following: immediately were after fendants arrested trunk authority person having inci- loaded footlocker into the search 3-4, arrest, 2476. The

dent a lawful while a car. Id. S.Ct. custodial under exclusive upon the need to disarm and to footlocker remained based evidence, agents narcotics until depend does not on control federal discover it, and they opened what decide without warrant a court later after particular in a about an hour and a half the defen- probability arrést situa- arrested, marijuana and found weapons tion evidence in dants were would 4-5, 2476. upon in it. Id. at The Court fact found be search, concluding invalidated the arisen thus far have involved everything justifications simply the search-incident-to-ar- obtaining phone’s a cell num ber, arresting need for rest United States v. Flores-Lopez, 670 —the (7th others, Cir.2012), safeguard officer himself and “[t]o to looking records, prevent through the loss evidence”—were arrestee’s call Finley, absent. Id. at 97 S.Ct. 2476. The States v. Cir.2007), id., more hour messages,

search “was conducted than an text or photo- gained federal had agents graphs, Quintana, after exclusive United States v. (M.D.F1.2009). 1291, 1295-96 long control the footlocker and after F.Supp.2d respondents securely in custody” were Though majority of these courts' have therefore could not “be viewed as inciden- upheld ultimately warrantless cell phone justified tal to the or as arrest searches, they data a variety have used at-15, exigency.” approaches. that, Some have concluded

Finally, Edwards, there is the Court’s under Robinson and a cell phone freely recent decision in Arizona v. 556 can be searched incident to a defen arrest, justification L.Ed.2d dant’s lawful no with of an beyond Gant involved the fact of E.g., the arrest itself. vehicle, Diaz, governed by 84, arrestee’s which is a People v. 51 Cal.4th 119 Cal. rules, 343, (2011). 105, distinct set of see id. at 129 244 Rptr.3d P.3d 501 Others 1710, have, S.Ct. but the Court began varying degrees, with relied on the general summary of the preserve search-incident-to- need to on a cell phone. evidence d again, arrest doctrine. Court E.g., Murphy, Once the Unite States v. 552 F.3d rationales, 405, underlying Cir.2009); reiterated the .twin Finley, 411 exception, 260; in Phifer, first articulated Chimel: at Commonwealth 463 ' 790, (2012). arresting 210, “protecting officers and safe- Mass. 979 N.E.2d guarding any of of evidence the offense The Seventh Circuit discussed the Chimel might arrest an arrestee conceal or more explicitly Flores-Lopez, rationales 339, destroy.” (citing Id. at 129 S.Ct. 1710 assuming phone warrantless cell 763, 2034). 395 at 89 .justified by U.S. S.Ct. searches must be a need to Relying safety evidentiary protect arresting preserve those and de- justifications, evidence, 806-07, the Court that a found structible 670 F.3d at search of a incident finding vehicle to arrest is and preservation evidence con- lawful “when outweighed the arrestee unsecured and cerns of privacy invasion at case, reaching within of passenger distance issue in that because the search was compartment invasive, at the time of minimally the search.” id. at 809. 343, 129 1710.2 S.Ct. reject- A smaller number have of courts struggled searches,

Courts to apply phone have the Su ed warrantless cell with ju preme similarly disparate reasoning. Court’s search-incident-to-arrest In United Park, risprudence SI, to the search of data on cell No. CR 05-375 2007 (NJD.Cal. 23, phone May 2007), seized the person. The WL 1521573 that, example, issue cases the court concluded that a cell concluded, "[a]lthough The 2. Court arrest also 'crime of be found the vehi- Chimel,” 343, does not follow from that "circum- cle." 556 U.S. at 129 S.Ct. 1710 unique justify vehicle to the context stances (citation quotation and internal marks omit- search incident a lawful it is arrest when ted). reasonable to believe evidence to the relevant 6 York, 442 213- Dunaway item v. New as an viewed not should be 824 un- L.Ed.2d

immediately with the associated rejected Supreme has The Court therefore pos- as a Edwards Robinson and but der spe- “inherently subjective fact highly immediate an arrestee’s within session require rules “ad hoc determina- Chadwick, cific” which cannot be control under officers in field and part tions on of into the comes searched once reviewing in favor of clear ones courts” exi- police, absent exclusive control that, “readily by police will be understood circumstances, id. at In State v. *8. gent States, 541 officers.” Thornton v. United Smith, N.E.2d Ohio St.3d 623, 124 S.Ct. 158 L.Ed.2d (2009), Supreme distin- Ohio Court (2004); Belton, New York v. see also phones cell from other “closed guished been searcha- that have found containers” (“A (1981) sophisticat- highly L.Ed.2d 768 an arrest and concluded incident to ble ifs, rules, qualified all sorts of ed set that, high ex- an individual has a because ands, requiring drawing and buts’and in the of her contents pectation distinctions, of subtle nuances and hairline must phone, any search be cell thereof heady upon be sort stuff warrant, pursuant to a id. at conducted lawyers judges facile minds recently, And most Smallwood feed, they may literally be eagerly but State, So.3d 2013 WL by the officer in impossible application (Fla. 2, 2013), May the Florida (citation quotation field.” and internal routinely held that the cannot Court omitted)). result, marks As when it the data within an arrestee’s search ciga- upheld the warrantless warrant, without a id. at *10. Robinson, “the hewed pack rette Court a search prohibiting court read Gant rule, straightforward easily applied, to a has been once arrestee’s Belton, predictably and enforced.” 453 person, removed from his which forecloses 459, Thus, we U.S. at 101 S.Ct. 2860. find ability phone weapon to use as a necessary bright-line craft a rule that it to destroy therein. to evidence contained to all warrantless cell applies searches, resolving than vantage point rather case B. Our solely particular circum- based that, in begin premise We from the at issue.3 stances the search context, single, “[a] Fourth Amendment guide government agree, urging to The seems to familiar standard is essential por officers, phone, any other only limited time us to find that a cell like lice who person, can be thor- expertise to reflect on balance item carried on and and incident a lawful ar- oughly social and interests involved in searched individual goes they reasoning The specific government’s circumstances confront.” rest.4 357, 153, (1931)). dissent, advocating case-by-case, fact- 75 L.Ed. 374 3. The 51 S.Ct. specific distinguished approach, explicitly relies on Missouri v. The Court -, McNeely, "naturally 185 exception, -U.S. 133 S.Ct. exigency calls .which (2013), per rejected L.Ed.2d which se 696 inquiry," case-specific from the search- for a blood drunk driv- rule warrantless tests of exception, "applies] incident-to-arresf McNeely exigent cir- ers. But involved the categorically.” Id. at 1559 n. 3. exception require- cumstances warrant gov- ment, noting things that the It is three worth and must each case of courts "evaluate First, arguing in this case. ernment not alleged 'on facts exigency based its own and ” challenge finding (quoting does not the district court’s Id. at Go- circumstances.’ 1559 States, what here was a Fourth Importing Bart v. United 282 U.S. that occurred Co.

7 (1) roughly as follows: Wurie’s cell one of the Chimel rationales: protecting an item immediately was associated with arresting officers or preserving destructi- person, carrying his because he was it on ble E.g., evidence. (or

him at 1710; Chadwick, the time of his arrest at least he 97 S.Ct. (2) otherwise); argue does not such below, items 2476. As explain this case there- freely any justifi can be searched without fore turns on government whether the can beyond arrest, cation the fact of the lawful demonstrate warrantless Robinson, searches, see a category, fall within the (3) 467; the search can occur even after boundaries laid out in Chimel. the defendant has been taken into custody government The admitted at oral argu- house, and transported to the station see ment that interpretation its of the search-

Edwards, 1234;5 incident-to-arrest give would law (4) there is no limit scope on the enforcement broad latitude to search, other than the Fourth Amend electronic device person seized from a dur- ment’s core requirement, reasonableness arrest, ing his lawful including a laptop see id. at n. 94 S.Ct. 1234.6 computer or a tablet device such as an reading

This “literal of the Robinson iPad. The search couíd encompass things decision,” Flores-Lopez, 670 F.3d at like text messages, e.g., Finley, 477 F.3d at fails to 254, emails, account for the fact that Nottoli, the Su- e.g., People v. preme Court has determined that Cal.App.4th there Cal.Rptr.3d categories (2011), are of searches undertaken fol- or photographs, e.g,, Quintana, 594 lowing an arrest inherently 1295-96, unrea- F.Supp.2d at though the officers justified sonable are never because here searched Wurie’s call log. Rob- Wurie, Sheehan, Amendment search. See under United States v. 583 F.2d 30 (“It F.Supp.2d at indisputable seems (1st Cir.1978). But Sheehan was a seizure subjective expectation has a priva- case, case, not a search extremely "[i]t is cy in the phone.”). contents of or her important distinguish per- a search of the Second, suggest does not objects son from a found in that seizure expectation Wurie’s any way was in LaFave, Wayne search.” 3 R. Search & Sei- reduced apparently because his was 2012). 5.2(j), § zure at 185 ed. Third, password-protected. it does not defendant in Sheehan conceded that "the inventory claim that this was an search. See legal”; search of his wallet challenged he 640, Lafayette, Illinois v. 103 S.Ct. only the seizure of a list of names and tele- 2605, 77 L.Ed.2d 65 phone numbers the wallet. 583 F.2d 31. fruit, Because the list was not "a instrumen- 5. It is not clear from the record how much contraband, crime,” tality, probative passed time between a Wurie’s arrest and the evidence,” phone search of his Nonetheless, but rather analyzed cell at the “mere we station house. probable because Wurie has not support raised whether cause existed to argument, we need not decide whether (citing Hayden, seizure. Warden v. 387 that, government is correct Ed- 294, 1642, under 87 S.Ct. 18 L.Ed.2d 782 wards, the search here was “incident to” (1967)). The lawfulness of a search of the arrest, despite delay. Wurie’s See 415 arrest, however, person incident to does not 803, ("[S]earches U.S. at 94 S.Ct. 1234 and turn on the likelihood that evidence of the spot seizures that could be made on the at the crime of arrest will be discovered. See Robin- may time legally of arrest be conducted later son, 234, 414 U.S. at 94 S.Ct. 467. The when place the accused at the arrives de- Supreme Court did' articulate such a rule in tention.”). Gant but limited it to the vehicle context. 343, 429 556 U.S. at S.Ct. 1710. government suggested 6. The has also a more way limited by for us to resolve this case: holding particular that search was lawful 8 Edwards, An Cigarette a Pack: Immodest Call Not and

inson claims, compel finding. a the Chimel such a Return to Justifications for Memory Searches Incident Cell Phone eighty-five percent suspect that We Arrest, 37, 6 Fed. Cts. L. Rev. to and Lawful phones own cell of Americans who (2012).8 42 much more than to do “use the devices calls,” Lee Duggan Maeve & make is, a by large, of That information and 2012, Rainie, Pew Activities Cell Phone photographs, nature: vid- highly personal (Nov. Life 2 Project, & Internet American (text, eos, messages written and audio 25, 2012), http://pewinternet.Org/~/media// email, voicemail), contacts, calendar and Files/Reports/2012/PIP_CellActivities_ll. browsing appointments, web search and difficulty with have some 25.pdf, would history, purchases, and financial and medi- view “Wurie’s government’s records. States v. Cotter- cal See United indistinguishable (9th (en Cir.2013) man, 709 957 F.3d personal possessions, ciga- like a kinds of banc) (“The and maintain papers create wallet, pager, or address package, rette physical digital also in form but book, to that fall within the search incident ac- private thoughts our and reflect most arrest to Fourth Amend- tivities.”).9 one It is the kind information reality, requirement.”7 In ment’s warrant previously would have one’s stored computer,” is “a modern cell off-limits home that' would been just purse is not computer “a another .... to performing to officers search incident 670 F.3d or address book.” Flores-Lopez, arrest. See 395 storage capacity today’s at 805. The Indeed, phones provide 2034. modern cell 5 phones immense. iPhone Apple’s is the home in a more literal direct access to sixty-four to up gigabytes comes with well; way as iPhones can connect now iPhone, storage, Apple, Specs, see Tech directly computer’s their owners to a home http://www.apple.com/iphone/specs.html webcam, iCam, via so (last 2013), application called May enough visited monitor the of their that users can inside pages hold “four million of Micro- about documents,” remotely. Flores-Lopez, E. homes 670 F.3d soft Word Charles Mac- But, Honor, Lean, Phone is touch of a cell Your Cell at 806. “At the a button See, Ortiz, e.g., argument States v. F.3d ment at oral that it was not United 84 insisted (7th 1996) (pager); seeking permit Cir. United rule that would access Uricoechea-Casallas, (1st cloud, F.2d information stored in the we believe Holzman, Cir.1991) (wallet); United States v. impossible that it soon be for an officer (9th Cir.1989) (ad- 871 F.2d during accessing avoid such information book), grounds dress overruled on other the search a cell electronic or other California, v. Horton device, which could have additional (1990); States L.Ed.2d Cotterman, implications. See United v. Burnette, Cir. banc) (9th Cir.2013) (en Eatherton, 1983) (purse); United States ("With computing, ubiquity of cloud (1st 1975) (briefcase). Cir. private government's becomes reach into data problematic.”). even more cognizant "[m]o- 8. We are of the fact that also increasingly personal bile devices store user demonstrating potential for 9.For cases data in the cloud instead of on the device private in a abuse of information contained itself,” which "allows data to be accessed see, phone, example, Schloss- modern cell provides backups.” multiple devices and from Solesbee, (D.Or. ah, berg F.Supp.2d 844 1165 Using Technology E. et James Cabral Borders, Justice, 2012), and Newhard Enhance 26 Harv. J.L. & Access (2012). (W.D.Va.2009). F.Supp.2d govern- Though Tech. search, phone search becomes a person house and the incident to arrest to turn on the that is not a search of a ‘container’ in any kind of item seized or its capacity to store word, normal of that though sense a house private view, information. In however, our contains data.” Id. what distinguishes a warrantless search of the data within a modern short, today In individuals store much inspection cigarette arrestee’s an personal more information on their cell pack or the clothing examination is wallet, phones than could ever fit in a just searched, the nature of the item book, briefcase, any address or of the oth- but the nature scope, of the search er traditional govern- containers that the itself. ment has invoked. (reject- See id. at 805

ing the idea that a cell can be In emphasized Court the need compared to other items carried on the scope for “the of a search incident to ar- person, today’s because phones rest” to be “commensurate pur- with its contain, “quite likely to or provide ready poses,” which include “protecting arresting to, data”).10 body personal access vast officers and safeguarding any evidence of Just as customs in early officers colo- the offense of arrest that an arrestee nies could use writs of assistance to rum- might conceal destroy.” or mage warehouses, through homes and 1710; -129 S.Ct. see also any without showing probable cause 762-63, (“When U.S. at particular pláce linked to-a sought, item made, arrest it is reasonable for the government’s proposed rule would give arresting officer to person search the ar- law enforcement automatic access to “a rested in order to any weapons remove virtual warehouse” of an individual’s “most that the latter might seek to ... use [and] intimate communications and photographs to search for any and seize evidence on the probable without if cause” the individual is arrestee’s prevent order to its subject arrest, to a custodial even for destruction.”). concealment or Inspecting something as minor as a traffic violation. cigarette (and, contents of a pack can Orso, Phones, E. Matthew Cellular War- did) Robinson, preserve destructible ev- Searches, rantless and the Frontier New (heroin idence capsules). It is also at least Jurisprudence, Fourth Amendment theoretically necessary protect the ar- Santa Clara L. Rev. We officer, resting who does not know he what are reminded of James Otis’s concerns will find cigarette inside the pack. Exam- “plac[ing] the.liberty about every man ining the clothing an wearing arrestee is every petty the hands of - officer.” Mi- (and, Edwajrds, did) can preserve de- (citation chael, supra, at 908 and internal Thus, structible (paint chips). evidence ’ omitted). quotation marks the searches at issue Robinson

It is true that speaks broadly, Robinson reasonable, Edwards were the kinds of and that Court self-limiting has never that do not offend found constitutionality of a Amendment, search of the Fourth even when con- 10. The record here does not phone, reveal the stor- tures of Wurie’s and we find such c.ell age capacity phone, of Wurie's cell but that is a rule unworkable in ton, event. See Thorn- First, significance, 2127; of no for two reasons. Murphy, 541 U.S. at "[ejven (”[T]o phones the dumbest of modem cell require police 552 F.3d at 411 gives large the user access to stores of storage capacity infor- to ascertain the of a cell Flores-Lopez, mation.” 670 F.3d at conducting before a search would sim- Second, party suggested neither ply has that our be an unworkable and unreasonable holding today rule.”). specific should turn on the fea- be justified a can ever can within a warrant. The same

ducted without Flores-Lopez, wallets, address under Chimel. See of searches be said briefcases, (considering at whether either books, are all F.3d purses, applies rationales to cell for destructible evi- of Chimel potential repositories searches); cases, weapons. phone data United States and, in some dence cf. ' (7th Cir.1996) Ortiz, (up- however, faced, with categories When holding pager search a the warrantless justified un ever be that cannot searches of the risk of incident to arrest because Court has taken der evidence). government The destruction of Chadwick, In approach. a different ques- on that provided guidance has little down warrantless searches Court struck Instead, hewed to a formalistic tion. it has personal property not or other “luggage law, interpretation case forgetting with the immediately associated that the doctrine search-incident-to-arrest “reduced that the have arrestee” independent right does not an describe control,” ... exclusive because to their officers, by held law enforcement but rath- necessary pre not to such searches are a class that are er searches reason- .of evidence, or protect offi serve destructible Fourth Amendment be- able sense , at safety. cer S.Ct. they potentially necessary cause to the Court concluded Similarly, preserve protect destructible evidence searching passenger compartment that the, Indeed, government officers. the arrestee has been of a vehicle once one, just notably has included tentative .police to a nei confined car secured and attempting place footnote in .its to brief nor preserves ther destructible evidence warrantless cell data searches with- protects safety. 556 at officer in the boundaries. We find our- Chimel 1710; also id. at see S.Ct. selves unconvinced. (“If possibility is no there government argue into area that The does not that cell could reach arrestee search, justified law seek to data searches are ’enforcement officers protect arresting to justifications both for the search-incident- need officers. Wurie arresting concedes officers can inspect are absent and the rule to-arrest at in a cell to ensure that it is not actual- apply.”). does The issue not ly weapon, Flores-Lopez, at general, were evi see Chadwick and Gant (“One searches, gun easily buy sub can stun that looks dence-gathering ject like a cell but we have any limiting principle, phone.”), no reason safety require such searches to believe that officer would permits Fourth Amendment phone’s a further only pursuant a lawful warrant. See intrusion into con- earlier, Thornton, As 124 S.Ct. 2127 tents. we mentioned the officer (“When J., (Scalia, concurring) officer safe who conducted the search Robinson had no idea find in the ty -cigarette or imminent evidence concealment or what he issue, pack, posed safety should not which therefore risk. destruction is judgments phone, in the heat of The officers who searched Wurie’s to make fine hand, exactly gen in the context of a knew what moment. But search, They eral the state therein: data. also knew evidence-gathering would find them. might .justify any over- that the data could not harm interests compelling.”). breadth are far less however, has, suggest- “arguably” here necessary We to ask ed the search therefore . find necessary prevent warrantless of data destruction whether the Specifically, government evidence. the them to search through phone. the Per- points possibility to the haps the calls on the answer is in the government’s log Wurie’s call could been acknowledgment overwrit- that the possibility of re- ten or the contents phone remotely of his mote wiping here was “remote” indeed. if wiped the officers had Weighed against waited to obtain a significant the problem govern- warrant.11 The with the implications inherent in cell phone data searches, argument ment’s is that it does not seem we slight view such a truly particularly prevent to be difficult to theoretical over- risk of evidence destruction as writing of calls or insufficient. wiping remote of infor- While the measures de- mation on a cell scribed above today.- Arresting be less convenient for First, arresting officers have at options. conducting least three than a full instances, search of a they phone’s in some simply can turn data incident to arrest, government off or has not battery. suggested remove its See they unworkable,’ 808; Diaz, Flores-Lopez, 670 and it bears burden of justifying its Cal.Rptr.3d failure to obtain a P.3d at 515 n. 24 warrant. J., See United Second, Jeffers, (Werdegar, dissenting). 48, 51, (1951). 96 L.Ed. 59 put enclosure, can in Faraday mere “[T]he fact law enforcement relatively inexpensive by device “formed may bé made more efficient can by never conducting material that shields the interi- justify disregard itself of the Fourth or from external electromagnetic radia- Arizona, Amendment.” Mincey v. MacLean, (citation tion.” supra, at 50 arid 385, 393, 57 L.Ed.2d omitted); quotation internal marks see Flores-Lopez, also 670 F.3d at 809. Third, they may (copy) be able “to ‘mirror’ truly Instead of attempting to fit this phone contents, the entire cell preserve case within framework, the Chimel them should the remotely wiped, be government insists that we should disre- without looking at the copy unless the gard the entirely, Chimel rationales original disappears.” Flores-Lopez, 670 two reasons.

F.3d at 809. First, government emphasizes that

Indeed, if there genuine is a threat of rejected Robinson the idea that “there wiping remote or overwriting, we it find litigated must be in each case the issue of difficult to why understand do whether or not present there was one of routinely use these evidence preserva- the reasons supporting authority for a methods, tion rather than risking the loss person search of the incident to a lawful during evidence time takes arrest.” 414 U.S. at 94 S.Ct. 467. it, 11. dissenting and our col- stand attaches to the evidence that league suggested have also that Wurie’s fail- actually carrying person— arrestee is on his ure to answer calls or to return home after being guarded not to evidence held else- or drug might deal have alerted co-conspirator. others to the where See fact of his arrest and destroy caused them to (describing U.S. at 129 S.Ct. 1710 (presumably or conceal evidence drug safeguard "any need to evidence of the of- home). stash later discovered at his That fense of arrest that an arrestee conceal speculation, added)); mere possibility destroy" and it is also a (emphasis present every ("In addition, in almost instance aof custodial U.S. at 89 S.Ct. 2034 it is arrest; we do entirely not think that such arresting concerns reasonable for the officer to always justify should the search of a cell search for and seize evidence on the arres- phone or other electronic device. Further- prevent tee’s in order to its conceal- more, destruction, added)). the risk of (emphasis under- ment or destruction.” in Robinson clearly stated Yet the Court on an as- predicated holding That Chadwick, authority person to search the that “[t]he “[t]he in clarified sumption, in custodial lurking all arrest” is dangers to a lawful custodial potential incident “make warrantless what arrests” are to disarm and to upon the need “based the ‘immediate within of items id., evidence,” did and Chadwick discover requiring without area reasonable control’ decid- that rule. the Court not alter When proba- to calculate officer arresting in in Chadwick ed Robinson evi- or destructible weapons bility al- person would any search 14- 433 U.S. at involved.” may be dence self- type been the certainly most have just the reasons 2476. For 97 S.Ct. un- justified be limiting search that could discussed, appears to be assumption Court, thirty- more than der Chimel. phone of cell data in the case incorrect a could not have envisioned years ago, five however, we importantly, searches. More majority of arres- the vast world which rule that would re- a suggesting are not an carrying on their tees would be reviewing or courts arresting quire a evidence but containing physical not item basis, decide, case-by-case whether a on that is intangible data —data vast store justi- data search is phone particular no immediately poses destructible and not Rather, we believe Chimel. fied under arresting officers. threat to the phone data searches that warrantless unlawful under categorically end, ways are with part we therefore In exception, given searchdncident-to-arrest Circuit, applied the which also the Seventh failure to government’s demonstrate Flores-Lopez. rationales Chimel necessary promote are ever the risk of Though the court described the destruction of safety prevent officer slight “so arguably destruction as evidence compati- Robinson as read evidence. We invasion of outweighed by the as to be finding. ble with such search,” it found that risk privacy from the sufficient, Second, places great given the minimal nature government to be (the a footnote at the end of Chad officers had weight on of the intrusion at issue person, that searches of the stating wick num- the cell for its only searched possessions within ber). unlike “searches Flores-Lopez, 670 F.3d at 809. control,”, “justi arrestee’s immediate based, part, That conclusion was least expectations by’.. fied .reduced precedent allowing on Seventh Circuit n. 433 U.S. at 16 caused the arrest.” search. “minimally invasive” warrantless 2476. The reads (citing Concep- at 807 United States Id- establishing an that footnote as unlimited (7th Cir.1991)). cion, of items carried on principle that searches precedent faced different We are with justification no whatso person require facts, but we also see little and different arrest, making beyond Chi ever a lawful holding, given the case-specific room for a in this context. The- Chad mel irrelevant bright-line insistence on Supreme Court’s surely meant to reference wick footnote is Fourth Amendment context. rules language explaining in Robinson similar See, Thornton, e.g., that, arrest of a because the “custodial allowing opinions A series of S.Ct. 2127. probable cause is rea suspect based e data searches but some cell the Fourth intrusion under sonabl others, reason- on the nature and based ... to the a search incident Amendment^ intrusion, ex- would create ableness of the justification.” no additional requires arrest highly “inherently subjective and actly the 414 U.S. at of rules that specific” probable fact set the Court cause to believe that against has warned and would be extreme- crime, contains evidence of a as well ly apply. difficult for officers the field to compelling as a need to act quickly that Thus, while the search of Wurie’s call impracticable makes it for them to obtain a log was invasive than a less text warrant —for example, where the search.of emails, messages, or, photographs, it is necessary believed to contain evidence to necessary phone for all warrantless cell a kidnapped locate child investigate or to (cid:127) governed by to be data searches the same bombing plot or incident. See. United particular rule. A rule based on instances (1st Tibolt, 965, States v. 72 F.3d 969 police in which the do not take full advan- Cir.1995) (discussing exigent circum- tage potential presented of the unlimited stances exception).

by prove cell data searches would phone

impotent they in those cases in which good-faith exception C. The exploit potential. choose to that only That leaves government’s belat- therefore that the We hold search-inci- argument, ed made for the first time in a exception dent-to-arrest does authorize appeal, footnote its brief on that sup- the warrantless search of data on a cell pression inappropriate here under the from an person, seized arrestee’s good-faith exception exclusionary to the government because the has not convinced Leon, rule. See United States v. 468 U.S. that necessary us such search is ever to 104 S.Ct. 82 L.Ed.2d 677 protect arresting preserve de- government The “heavy bears the burden” structible evidence. See proving good-faith exception that Instead, at 89 S.Ct. 2034. warrantless applies, Syphers, United States v. 426 F.3d cell data searches strike us aas. (1st Cir.2005), 468 and it did not in- way convenient for the to obtain exception voke the before the district information related to a defendant’s crime court. other, yet of arrest —or undiscovered having crimes—without to a war- secure This is not a case in which an interven nothing rant. find We ing change good-faith in. the law made the jurispru- Court’s search-incident-to-arrest exception relevant the district after “general that dence sanctions such evi- Davis, opinion. E.g., court issued its v. Thornton, dence-gathering search.” — 541 States, -, United (Scalia, J., 2419, 2425-26, (2011); 180 L.Ed.2d 285 concurring).12 Sparks, States v. 711 F.3d 61- United (1st Cir.2013); Lopez, v. are, however, United States exceptions

There (6th Cir.2011); see Fed.Appx. the warrant that requirement govern- Curtis, also United ment has not invoked here that F.3d but (5th Cir.2011) (applying good- 713-14 justify a warrantless search exception legal faith “to a that search right data under the Most im- conditions. time it but has portantly, was conducted been exigent we assume cir- illegal by intervening change rendered po- cumstances would allow the law”); McCane, immediate, lice to conduct an in the warrantless United States (10th Cir.2009) phone’s (finding search of a cell data where acknowledge may necessary 12. We that we re- data un- have to become come, years visit this issue in the if further rationales. der one or both of the Chimel changes technology cause warrantless 27, 34, States, a v. undertakes officer who “a (2001))). 2038, 150 L.Ed.2d 94 upon the set- reliance in reasonable States Court of a United tled case law reverse the denial Wur- We therefore is later though the search Appeals, even vacate his convic- suppress, motion to ie’s Supreme .Court deci- by invalid deemed tion, proceedings further and remand for misconduct”). sion, engaged- has -not opinion. with this consistent that we emphasizes, HOWARD, dissenting. Judge, Circuit suppression rul- court’s affirm the district by the manifest any ground made ing on prefer of us would Undoubtedly, most Doe, record. United States stored our cell the information (1st Cir.1995). case, In this howev- eyes, should a kept prying be phones er, ground should not believe we do from our hands phone be lost or taken govern- the respect to which be one with could, during an arrest. One police the entirely proof bore the burden ment steps to en- individually, protective take below, carry despite that burden failed to settings with phone’s security hance the the ripe issue was the fact that information, or for that respect to that review.13 district court’s -might be enacted to legislation matter information off- unprotected

make such III. Conclusion police unless limits to finders or to the they obtain a warrant to search first framing, time of its “the cen Since the whether question But the here is phone. underlying the Fourth tral concern requires this court the Fourth Amendment ensuring has been that law Amendment” long-standing precedent and to abandon “unbri officials do not have enforcement con- unprotected such information place rummage among at will dled discretion beyond the reach of phones tained Gant, private effects.” person’s making when a custodial arrest. police 1710; see also required I think that we are neither nor 767-68, Today, U.S. at 89 S.Ct. 2034. majority has. to rule as the authorized many personal Americans store their most Const, Instead, “effects,” requires apply this case us amend. “papers” and IV, legal to a new form of phone, format on a cell familiar standard electronic must technology. This is an exercise we person. Allowing police on the carried judges, for the Consti- without a warrant often undertake to search that data would, technology in tution is as durable as is dis- time conduct a lawful arrest exercise, consistency is a view, recurring ruptive. In this our create “a serious and to con- Admittedly, virtue. when forced threat to the of countless individu 1710; of the front the boundaries als.” 556 U.S. at — Jones, U.S.-, Amendment, but also of the tech- v. Fourth United States cf. (2012) 945, 950, surprising it is not nology question, 181 L.Ed.2d 911 (“At bottom, beyond the case at hand and preserva we must we would look ‘assur[e] our long-term effects of degree privacy against gov theorize about tion of implications of our deci- that existed when the Fourth decision. Yet ernment ” sions, ancillary to our adopted.’ (quoting Kyllo important, while Amendment was However, opinion. the record v. done so in its 13. invokes United States Cir.2012), (1st government had Grupee, in that case reveals that 682 F.3d below; good-faith exception good-faith exception raised addressed simply did not reach it. despite district court the fact that the district court had not power to constitutionally defined resolve warrantless search of a wallet incident to a arrest). appears Having each case as it before us. custodial scrutinized the relevant Court Sheehan was no outlier. Courts have decisions, precedent, as well as our own I regularly upheld warrantless searches of , support find no for Wurie’s claim that he nearly identical range information right protecting a constitutional had Ortiz, E.g., “containers.” United States v. warranty during information obtained (7th Cir.1996) 84 F.3d (telephone Nor I less search. do believe that we pager); numbers from a United States v. the, possess authority to create such a Rodriguez, 995 F.2d Cir-. Therefore, I right. respectfully dissent. 1993) (address wallet); book kept inside a Molinaro, F.2d-1341, The facts are clear: the conducted United Wurie; (7th Cir.1989) a valid custodial arrest of the cell 1346-47 (phone numbers dn wallet); was on Wurie’s at the slips paper time found in a arrest; Holzman, seeing after repeated calls States v. (9th Cir.1989) (address house,” “my book), to Wurie’s cell abrogated and, police flipped open pressing two on grounds by California, Horton buttons, the associated number. retrieved 496 -U.S. 110-S.Ct. 110 L.Ed.2d long acknowledged

We have can type police officers extract this of informa- officers’ limited search of one immediately tion from telephone containers associat- log number Wurie’s call was with a at the time ed of arrest. In even less intrusive than the searches in (1st Sheehan, observed, United States v. 583 F.2d 30 these police plain cases. The Cir.1978), police suspected view, arrested a multiple “my bank calls from house”—a wallet, robber and then searched his which shorthand similar to what millions of cell piece paper bearing included a of phone quickly several owners use to identify calls telephone names and numbers. Id. 30- instead of the assigned by number police copied piece 31. The provider phone. of service Wurie’s —to paper, which challenged Only they action Sheehan as thén did initiate their search an unconstitutional seizure. The claim púrpose is and for the limited of retriev- inapposite made that Sheehan is ing phone the actual number associated present case because it concerned “my police a chal- with house.” The did not rum- seizure, We, lenge to the mage through not the search. phone, Wurie’s cell unsure however, they they did not address the of what warrantless could find. Before had legality search, search in begun they Sheehan because its even their knew who Coffin, beyond dispute. Judge calling many for the was Wurie and how times court, noted as an initial “[a]p- person step matter that had cálled. The additional of concedes, must, pellant as he that his ar- identifying telephone actual number rest was lawful and that hardly therefore the constituted a further intrusion (em- legal.” interests, search of his wallet was especially Wurie’s sihce added). phasis though It is not as (cid:127)that immediately Shee- information is known to legality han left- the third-party telephone company. of the search unre- See solved; rather, Flores-Lopéz, the court considered the United States v. 670 F.3d uncontroversial, Cir.2012) pro- issue and therefore (holding vided no elaboration. police See also United could retrieve an arrestee’s cell Uricoecheof-Casallas, phone phone number from his without a (1st Cir.1991) warrant, in (upholding part, -phone because “the com- law.” Id. at represent presently as soon as number phone’s knows

pany omitted). (citations net- telephone is connected the call information, from work; obtaining that phones possess assuming that cell Even a search because company isn’t phone as we must consider attributes that unique telephone attrib- subscribing to the none of those by analysis, .service our part of , Though we to surrender in this case. present is deemed utes are user storage capacity Wur- not know the have had do he interest any privacy police did know that phone, ie’s cell number”) Mary- (citing Smith through voluminous data not browse 742-43, land, n they Nor did general evidence. (1979)); Matthew see also 61 L.Ed.2d “cloud,”14 applications or other search the Phones, Orso, Warrantless E. Cellular informa- sensitive containing particularly Searches, Fourth Frontier the New Instead, they conducted a focused tion. 50 Santa Jurisprudence, Amendment electronic and limited search Wurie’s (suggesting rule Rev. Clara L. If the information log. call search of the warrantless permits piece been written on sought had message addressees” and text “call lists electronically, opposed to stored paper, arrest). This case fits easi- to an pursuant that the question be no there would existing precedent. ly within constitutionally, so I see no reason acted persuasive The constitu- any other in this case. Nor there hold otherwise solely on cannot turn tionality this case from of a search distinguishing grounds written in ink the information is the container whether That previous our decisions. electronically. not, displayed a cell searched was itself, for “a constitutional dispositive, of warrantless The issue ‘worthy’ and ‘unwor- between distinction has come before a number improper.” would be Unit- thy’ containers Flores-Lopez, 670 F.3d at E.g., circuits. Ross, Curtis, ed States 803-10; 635 F.3d United States (1982). We (5th 72 L.Ed.2d Cir.2011); S.Ct. W. v. Silvan (10th observation United made a similar Cir. Briggs, Fed.Appx. (1st Eatherton, 2009) 519 F.2d 603 Cir. States v. (-unpublished); United Cir.2009). 405, 411 1975), the warrantless upheld Murphy, where majority’s adopted the None of them to an arrest. have of a briefcase incident search phone warrantless cell categorical bar on that a brief- recognized We 610-11. Instead, unanimously have searches. characteristics, but unique case had some phone searches be- concluded that the cell analysis turning on rejected any explicitly violate the Fourth fore them did not container: nature of the searched Amendment. or- may be different “While a briefcase box, it is cigarette from a der of container here. Wur- I reach the same conclusion articulation easy principled to rest at the was on his phone ie’s cell upon the fourth amendment information that the reach of time of the arrest. The distinction____[W]hile character that a distinc- looked at was of a police [such during held searchable previously it does we have analytical appeal, have tion] of items right cepts that there are limits to searches 14. The does not claim my I discuss of information arrestees. conduct warrantless searches found on custodial important conces- in the cloud. This is an sion,. later. view of those limits government ac- suggests for arrest. has made no calls from the same number to an a custodial Wurie why this is convincing argument drug for arrested dealer’s cell phone, first an- search for ringing different than the cell phone swered the and thereaf- in a wallet or an address kept numbers ter communicated to the caller via text Thus, I see no reason to look for arrestee, book. message posing while as the exist; where none Wurie has complications discovery which led to the of additional a violation of his Fourth not shown evidence. Id. at 1139. The district court rights. Amendment evidence, suppress denied motion to holding police according acted “the rationale, view, In.my there is another exigencies commensurate with the Defen- record, upholding from the for apparent 1152; ringing dant’s cell phone.” Id. at might that others this search: the risk Paz, see v. De La also destroyed did evidence after Wurie (ad- (S.D.N.Y.1999) F.Supp.2d phone. received not answer his Wurie mitting evidence—under exigent cir- repeated “my span calls from house” in the cumstances when the . —obtained of a few minutes after his arrest. His an answered arrestee’s cell failure to answer these calls could multiple identify heard callers the ar- have alerted Wurie’s confederates to his moniker). drug restee his dealer arrest, prompting destroy them to further police action in analogous— this case is majority evidence of crimes. The as- arguably less invasive—and a rea- further present serts that this scenario be would why son Wurie’s constitutional challenge every “in almost instance of a custodial specific founders on the facts of this case. arrest,” justifi- giving police ever-ready an phones., Swpra cation to search cell at 11 Granted, my fact-specific view does not contrary, justification n. 11. On comport all-or-nothing approach with the specific on the based facts this case. adopted by majority and some state “my repeatedly The fact that house” called courts, State, see Smallwood v. No. SC11 objective phone provided Wurie’s cell 113 So.3d 2013 WL 1830961 basis for enhanced concern that evidence (Fla. Smith, 2, 2013);' May State v. destroyed gave be and thus 163, 920 Ohio St.3d N.E.2d 949 inspect phone. a valid reason to But I the competing unper- find rationale California, See Chimel v. pointedly, suasive.15 Most the reasons 762-63, 23 L.Ed.2d 685 above, explained Wurie himself Suffered no (1969). during constitutional violation search. rule, This reason for affirmance is If to it cannot additional are fashion elide Gomez, not a novel one. States v. “The United facts before us. constitutional (S.D.Fla.2011), F.Supp.2d pres- 807 1134 of a validity pre- warrantless search is case, comparable example. eminently ents a In that question the sort of which can ,be officers, observing multiple after decided in the concrete factual bright-line prudence. 15. The insistence on a rule con- Numerous actions are fact-intensive, Supreme opinion judged totality trasts with the recent Court based on of the - --, McNeely, analyses according in Missouri v. U.S. 133 circumstances rather than 1552, (2013), rules, categorical including S.Ct. 185 L.Ed.2d 696 to in situations rejected bright likely require police line and instead relied that are to to [] rule totality analysis judgments.”). on a of the for split-second circumstances make difficult drivers, argued bright-line warrantless blood tests of drunk id. at While it can be that a rule ("[A] case-by-case approach hardly preferable, 1564 is is it cannot be claimed that such a unique juris- necessary. within our Fourth rule Amendment is 18 now invited every arrestee is v. under which case.” Sibron individual

context of the falls into some argue that his search 40, 59, to York, 88 S.Ct. U.S. New 392 must be category and therefore distinct competing Yet the 917 20 L.Ed.2d justified under Chimel. hypothetical searches analysis focuses on that, any case or emerged have not drastically altering Thus, we are either Those sce- this court. controversy before Robinson, holding the basis of our day one form narios 427 38 L.Ed.2d 414 U.S. 94 S.Ct. case, they but cannot in another reasoning (1973), pro- to by forcing government claim. analysis our of Wurie’s govern ev- practically rationale for vide Chimel search, putting are ourselves ery or we problem this majority gets around The any con- deciding, without position to “demon- government by requiring basis, part of a which searches ceptual warrantless strate are not. “category” and which distinct searches, fall within the category, aas confusion spreading the risk of This runs Supra at out in Chimel.” boundaries laid community and the law enforcement Chadwick, v. 433 7. It cites United limiting, litigation multiplying, rather than 53 L.Ed.2d 97 S.Ct. U.S. to these searches. pertaining (1977), grounds by Cal- abrogated oh other Acevedo, 565, 111 S.Ct. categorical ap argued It ifornia (1991), 1982, 114 and Arizona L.Ed.2d Supreme flows from the Court’s proach Gant, Gant, “the which reaffirmed opinion (2009), ap- support L.Ed.2d 485 in the principles established fundamental Supreme Court did hold on proach. scope regarding case the basic Chimel occasions, in- of which those two neither ar incident to lawful custodial Gant, held volved the search of items rests.” arrestee, Belton, types that certain of searches V. (quoting New York 2860; lack require a warrant because n. Supreme (1981)). But justification. Chimel did take a cate- L.Ed.2d 768 Gant extrapolated not from those Court has to the gorical, approach Chimel-based general cases a rule that but its usefulness for question, search in justify category each of searches under analysis should not be' overstated. our appel- requirement nor a out, government points the Su- As the analysis. this sort of late courts conduct cases treat searches preme Court

Indeed, and the items on the arrestee-—as if Court wishes us arrestee subject on a is the case here —as either at searches incident to arrest to look subject basis, analysis, or at least is curious that the Chimel categorical scrutiny. These absolutely no framework a lower level Chimel Court has offered cases, are on cat- unlike Chimel defining what constitutes distinct case, and we are not point its own nuances with Wurie’s egory. Each arrest has (as in favor of the variations, disregard free to them from the item searched case) in As an inferi- principles over it enunciated Gant. in this to the officer’s control (as court, “con- Chadwick), against cautioned in and there or we are was the case have, by cluding] more recent cases categories [that] of could be infinite distinct prece- an earlier implication, overruled on these variations. Yet searches based of this Court has precedent dent. ... [I]f relevant criteria are articulated es- no case, yet to appears in a application That is not a direct tablishing categories. these line rejected in some other rest on reasons way impose paradigm, to this new good decisions, Appeals types of the Court of should differ from other of searches inci- controls, directly case which dent to follow the arrest. prerogative the of

leaving to this Court Supreme The Court reiterated Robin- Agostini overruling its own decisions.” Edwards, ’s'holding son United States v. Felton, 208, 237, 1997, 117 S.Ct. 39 L.Ed.2d 771 (1997) (internal quotation 138 L.Ed.2d 391 (1974), in which upheld' the Court the omitted). marks and alterations search and seizure of an arrestee’s clothing Robinson, In Supreme the Court drew a ten hours after he was arrested. While sharp types distinction between two of analysis most the focused on timing the search, pursuant searches to an arrest: opinion assumed that of the arrestee and searches of the area law enforcement could from “tak[e] [the validity within his control. “The of the the effects in pos- arrestee] his immediate person search of a incident to a lawful that constituted evidence of session crime. regarded arrest has been as settled This was and is a normal incident of a (cid:127) arrest____” enunciation, its first and has remained vir- custodial Id. at 1234; tually unchallenged.... Throughout see also id. at 94 S.Ct. 1234 (“[B]oth series of cases in which the person Court has property and the in his search,] [type addressed the second no possession may immediate be searched at expressed unqual- doubt has been as to the the station house after the arrest has oc- curred....”). authority arresting authority ified of the again, to Once Supreme search the of the arrestee.” Rob- Court was unconcerned with the existence inson, 224-25, at 94 S.Ct. 467. or nonexistence of Chimel rationales. The Supreme opinion barely them, Court did state that and the discussed authority basis of this is “the need to did not prove seek to evidence,” disarm and to discover id. at present. were 811 n. (“No (Stewart, J., but in the next sentence S.Ct. 1234 dissenting) clarified that custodial of a “[a] arrest sus- claim is made that the feared that pect probable based on possessed weapon cause is a reason- Edwards either able intrusion planning destroy under the Fourth Amend- was paint chips ment; lawful, Indeed, being that intrusion clothing. the Government has requires incident to the arrest no addition- not suggested even that he was aware of justification,” al id. presence paint chips on his clothing.”).

Indeed, rely, the Court could aon not Robinson, Chadwick, justification Chimel as the Even in where the arresting officer require police- conceded that he “did not Court did to obtain a object searches, category fact believe that the warrant for a [Robin- con- pocket weapon” coat was a and that tinued to treat son]’s search of arrestee gave thought he no immediately the destruction of and items associated with him justified evidence either. Id. at independently by 94 S.Ct. 467 as “reduced ex- (Marshall, J., dissenting) (quoting pectations the ar- ar- caused Chadwick, resting testimony: officer’s “I think didn’t rest.” 433 U.S: at 16 n. Thus, just about what I was looking holding for. I S.Ct. 2476. in Chadwick him.”). searched applied only “luggage personal Robinson not have or other rejected Chimel the context of searches associated property immediately with arrestee, of an arrestee and items on the person, the arrestee.” Id. added). cases, but it did establish that (emphasis these searches S.Ct. 2476 These equal- this is phone, in control of a cell imme- are items together, establish taken wallets, packages, ad- ly cigarette true of a with the arrestee —as diately associated books, Drugs do not and briefcases. dress any be searched without category may— air; not weapons into thin do disappear majority seeks justification. Chimel is the own accord. If that flee of their govern cell rule to bright-line reasoning, then a warrant basis for the fact such a searches, denies the but searching any required be before should arrestee’s all items on the covering rule — object the exclusive control of within exists. person already— majority is I not think that the police. do of items on an if searches But even rule, I for this but cannot see arguing justifications, I required Chimel arrestee analysis. Ironical- outcome under its other fail to meet why phones cell cannot see pose greater ly, phones arguably cell wallets, cigarette pack- if this standard items be- risk than most other Chimel briefcases, books, purses ages, address wallets, cause, packages or cigarette unlike distinguish made to attempt do. The is re- phones contained cell the evidence items, but cell from these phones police after the mains destructible even up not hold under those distinctions do control of the have assumed exclusive scrutiny. wiping.17 phone via remote items, argument is that these other One cell argument Another is that because theoretically all could phones, unlike cell “self-limiting,” are not phone searches evidence, jus- contain “destructible” always require a warrant. The ma- But evidence examining tifies them. jority define the term precisely does just as destructible as the a cell is “self-limiting,” gather but I refers press in a wallet: with the evidence danger phones, that cell because buttons, remotely, accomplished few even suscep- storage capabilities, vast their clean of phones wipe can themselves “general, evidence-gathering tible Any data. claim that the information is (citing at 10 Thornton Supra searches.” simply not destructible strikes me as States, 615, 632, 124 (2004) is is that wrong.16 Pérhaps (Scalia, what meant L.Ed.2d 905 longer matter, is no destructi- j., the cell data As an initial concurring)). it within the exclusive control of ble once is focus of has never been the ac- discussing law enforcement officers. But even the search incident Court cases immediately is for items cepting that the likelihood of destruction to arrest Thus, I the arrestee.18 am zero once the officers associated with reduced to almost safety. per- phones, pose “[T]he a risk to officer evidence is 16. The term “destructible” "tangi- haps “physical” intended to mean in Robinson officer who conducted search fly, That distinction does not ble” evidence. ciga- in the idea what he find had no First, just evidence for two reasons. because posed safety pack, which therefore rette intangible does not make it indestructible. Supra at I find it hard to believe risk.” 10. noted, just can delete data As an arrestee justi- officer is more that a reasonable Second, any easily drugs. as he can discard against booby- remaining guard fied based on the difference between distinction cigarette packs in the line trapped and wallets ignores tangible intangible evidence against sophisticatéd duty, elec- than she is upheld we have the warrantless fact tronic devices. intangible during information a cus- search of Sheehan, todial arrest. United States Robinson, instance, con- (1st Cir.1978). 18.For pursuant to a standard their ducted half-heartedly suggested It that con- is also physical objects, tainers that hold unlike weight facility it much in assess- tion give reluctant violated the Fourth Amend- ment). claim. ing majority Wurie’s constitutional has instead chosen to ignore option in favor of a rule that Nonetheless, if we are concerned that sweeps too far. police officers will exceed the limits Still, many I share of the majority’s searching behavior while cell constitutional privacy concerns about interests at phones, then we should define those limits phone stake cell searches. While the job perform so that can their both phone warrantless search Wurie’s fits Instead, effectively constitutionally. “specifically within one our established .of majority all cell lumped phone has exceptions,” and well-delineated together, even while ac- perhaps Camacho, (1st 661 F.3d knowledging may pro- its broad rule Cir.2011) (citations omitted) (internal quo- some hibit otherwise constitutional omitted), tation marks due rapid to the (“Thus, Swpra searches. at 13 while the technological development of phones cell log search of call was less Wurie’s invasive prevalence and their increasing society, emails, messages, than a search of text or phone pose cell searches do a risk of de- photographs, necessary it is for all war- priving arrestees protection their rantless cell data searches to be against unlawful searches and seizures. rule.”). governed by the same But this There must be an outer limit to their need not be the solution. canWe draw legality. ' line for appropriate In Flores-Lopez,. Judge suggest- Posner searches, just as we have in other done ed that courts should balance the need to instance, search, body contexts. For like phone against search a cell search, a cell not inherently self- interests at stake. A limiting. strip frisk can lead to a [E]ven when the risk either to the police search, search, cavity which can lead to a officers or. to the existence of the evi- x-ray which can lead to But this scanning. negligible, dence is the search is al- parade of horribles has not come to pass lowed, provided it’s no more invasive because we have established constitu- than, frisk, say, a or the search of a line, tional and conscientious law enforce- container, conventional such as Robin- largely ment officers have to it. adhered cigarette pack, son’s in which heroin was (1st Spinney, Swain v. See found. If instead of a strip frisk it’s a Cir.1997) (holding search, safety the risk to the officers’ strip conduct a of an arrestee preservation to the of evidence of crime arrest); incident to the see also Roberts greater justify must be the search. (1st Island, Rhode Cir. 2001) (citations (holding Flores-Lopez, indiscriminate strip 670 F.3d at 809 omitted). searches of misdemeanant dur- I believe that arrestees ing processing administrative at a searches should follow this formula. That deten- operating procedure police department, examining] ... [as as] well the contents all carry

which trained officers to out a full (in- field pockets’ [sic] of the arrestee...." search after arrest. United States v. Rob- omitted). quotation ternal marks Given that inson, 221 n. violation, Robinson was arrested for traffic L.Ed.2d 427 That entailed "com- arresting and that officer conceded that pletely search[ing] the individual and in- arrest, personal during-the he felt no risk such, collar, spect[ing] areas behind purpose conceivable for this search was [sic], underneath the dollar the waistband of gather evidence. general . trousers, cuffs, the socks and shoes analysis helpful I find United prove must say that

is not to Cotterman, of evi- safety or destruction 709 F.3d 952 risk to officer is, in Cir.2013) (en banc). There inherent every case, case. dence in In that arrest, some minimal risk every custodial a war- determined whether Ninth Circuit of evi- safety and destruction to officer laptop examination of a rantless forensic Moreover, Chadwick states dence. a border search violated computer during the arrestee’s itself diminishes the arrest con- The court the Fourth Amendment. “immediately as- over items rights privacy analysis, balanc- ducted a reasonableness Chadwick, with the arrestee. sociated” privacy interests of the individual ing But the at 97 S.Ct. 2476. policing sovereign’s interests against should be of the arrestee’s invasion that, It stated its borders. Id. at 960. justification for the to the proportional “turn[ing] involved had the search search. warrantless (cid:127) opening] view[ing] the devices and “the Fourth approach respects This ... would be inclined to image files against general proscription Amendment’s 960- it was reasonable.” Id. at conclude and seizures.” Ed- unreasonable searches However, nature of the 61. the invasive wards, 9,n. 415 U.S. at 808 S.Ct. examination, re- forensics which included (internal (citations omitted) quotation files, as well as storing previously deleted omitted). It consistent with marks is also nature of data on uniquely “the sensitive has been core limit that reasonableness devices,” id. at convinced electronic Robinson, acknowledged in which does examination the court the forensics patently “extreme or abusive” permit was an unreasonable border search absent Robinson, searches, see, offspring, e.g., showing suspicion, and its of reasonable id. S.Ct. Swain, at 5-9: The opinion in Missouri v. Court’s recent analysis A similar reasonableness would -, McNeely,--U.S. types certain of cell restrain (2013), 185 L.Ed.2d 696 shows The inherent searches under Robinson. a touch- inquiry reasonableness remains arrest, along risks in a custodial with analysis. of Fourth Amendment stone privacy expectations reduced of the arres- that, held the context Court tee, against must be balanced the wide drivers, of drunk

warrantless blood tests range private data available in a cell totality to look to “the courts had phone. ultimately question But po- circumstances” determine whether what constitutes an unreasonable exigency ex- lice officers’ reliance on the search should be left for another at 1558-63. ception was reasonable. majority has outlined some of day. The principles Similarly, Robinson’s while troubling privacy the more invasions searches, generally authorize during occur a warrantless search. could certainly in this encompass the search hypothetical in the long So remain case, limits to Robin- there are reasonable realm, premature I think it to draw the enforce, son that we should not hesitate that, say reasons line. Suffice it to phone’s unique a cell especially light stated, I have the search this case fell would be technological capabilities, for “[i]t side of that line.19 on the constitutional degree priva- that the foolish to contend cy by secured to citizens the Fourth respectfully I dissent. entirely unaffected Amendment has been Kyllo v. technology.” the advance of States, 27, 33-34, 121 2038, 150 L.Ed.2d 94 STATES, Appellee,

UNITED

Rodney Wayne RUSSELL,

Defendant, Appellant.

No. 12-1315. Appeals, Court of States

First Circuit.

Aug. 2013. If there had been a constitutional violation purported justification constituted the for here, arrest, application good excep- had no ... faith reason to adduce evi- present dence interesting question. tion would of his own to rebut the an contentions that I Government makes here Because would find no constitutional viola- first time.”). tion, however, govern- I do not address good argument. exception ment's But faith I good Such is not the case here. The faith disagree majority’s with the decision not to exception merely gov- an extension of the good exception consider the faith to the extent argument ernment’s main this search govern- it based that decision on the complied existing with law. The factual rec- ment's failure to invoke the before appears sufficiently developed ord to allow may the district court. We affirm on argument, consideration of this and the our apparent basis from the record. See United government, by raising ap- it in its on brief Sanchez, (1st Cir.2010). 612 F.3d peal, gave opportunity respond Wurie the course, underdeveloped Of if the record is Thus, reply bypass in his brief. I would not appellee present because the did not the issue argument merely this because the court, appellee to the district must suffer appeal. first raised See Jordan v. U.S. consequences. See Giordenello United Justice, Dep’t States, 480, 488, Cir.2011) (holding appellate that an court (1958) ("To permit L.Ed.2d 1503 the Govern- ground "provided affirm on an alternate inject theory ment to its new into the case at ground power the alternate is within our stage unfairly deprive petitioner would opposing party to formulate and the has had a adequate opportunity respond. it”) omitted) (citations This is fair chance to address ' petitioner, (internal so because in the District Court quotation marks and alterations being omitted). entitled to assume that the warrant

Case Details

Case Name: United States v. Wurie

Court Name: Court of Appeals for the First Circuit

Date Published: May 17, 2013

Citation: 728 F.3d 1

Docket Number: 11-1792

Court Abbreviation: 1st Cir.