Cell Phones, Cigarettes, and Diaries in Wurie/Riley

When police make an arrest, under what circumstances can they search the digital contents of the arrestee’s cell phone?  That’s the issue posed in two fascinating Fourth Amendment cases currently pending in the Supreme Court: United States v. Wurie and Riley v. California.  The criminal defendants in these cases argue that new rules or exceptions should be created for new technologies, but in this post I’d like to float a different approach.  In short, this may be a situation where a new technology helps us see more clearly how old technologies (like diaries) should have been treated all along.

By way of background, in United States v. Robinson (1973) the Supreme Court established a “categorical” rule that police may search the person of an arrestee.  In Robinson itself, this meant that police had constitutional authority to open a cigarette pack found in the defendant’s overcoat pocket.  The point of allowing this kind of search, Robinson explained, was to disarm arrestees while preventing them from destroying evidence. Based on Robinson, the governmental parties in Wurie and Riley argue that police have categorical authority to search cell phones incident to arrest.  “Categorical,” the governments argue, means categorical.  The criminal defendants, by contrast, contend that new technology demands an exception to Robinson.  Smartphones contain vastly more digital information than anyone is likely to carry around with them in written form, and much of it is very private stuff, akin to materials historically kept at home.  Therefore, the defendants argue, the Court should create a categorical exception to the categorical rule of Robinson: no searching cell phones without a warrant.

But there is another way to limit the Robinson rule. Instead of focusing on the difference between digital and written information, the Court could focus on their similarity. Had the police in Robinson found a diary on the arrestee, for example, it is hard to see why they should have authority to read it.  Sure, Robinson would allow the police to check that the diary contained no hidden razor blades, and it would allow the police to hold on to the diary, lest the defendant start ripping out and eating its pages.  But those commonsense searches and seizures would fulfill Robinson‘s stated purposes, even if the diary remained unread.  On this view, Robinson conveyed “categorical” authority to search and seize physical objects, not written or digitally encoded information.  As Robinson itself put it, the search-incident-to-arrest authority is an authority to “find and seize things” — not to pull up a stool and scrutinize potentially private documents.

Which way of limiting Robinson is better?  The appeal of the defendants’ approach is largely twofold: it would preserve court-of-appeals decisions that appear to bless diary-reading incident to arrest; and it latches onto the very intuitive idea that digital technology is qualitatively different from anything even imaginable at the time that Robinson was decided. These are important points, but they should not be overstated.  At least based on the briefs and arguments in Wurie/Riley, it seems that cases involving documentary searches incident to arrest are few and far between, with none in the Supreme Court.  So the main effect of the Court’s decision — for lower courts, arrestees, and police — will be felt in the area of cell phone searches.  The Court can accordingly decide how to handle diaries and other documents as it thinks correct, without having to worry too much about disrupting case law or police practice.

Ultimately, Wurie and Riley involve cell phones, and it makes sense that the Court would limit Robinson in that context, without reaching out to prohibit other types of searches incident to arrest.  By the same token, however, I hope that the Court does not unnecessarily decide that diaries and other confidential papers are fair game when found on arrestees.

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8 Comments

Filed under Fourth Amendment

8 responses to “Cell Phones, Cigarettes, and Diaries in Wurie/Riley

  1. Asher

    Once you flip through the diary looking for razor blades, isn’t every page in plain view? Maybe you can’t linger on any page for long, but, for example, if the arrestee is a member of one of those gangs that encourages members to spell words without the first letter of names of rival gangs, it’s going to be difficult to not notice that on a flip-through.

  2. pvine

    So, do you believe that the warrantless, nonconsensusal, nonexigent reading of a diary incident to a lawful arrest is ever reasonable under the 4A? If not, why not. If yes, what rule would you apply to limit the circumstances under which such reading may constitutionally occur.

    • Joe R.

      It depends too on how you define a “diary”.
      Supposed an arrested drug dealer has a small notebook on his person which details various purchases, sales, dates and contacts. Or, a person arrested for credit card fraud has a notebook containing hundreds of people’s names, DOBs, SSNs and the like.
      Are these to be considered “diaries”? How can you know they aren’t “diaries” without examining them?

  3. There is a simple way to resolve the issue. First: If the phone is locked then it cannot be searched; if not locked then it can be searched initially concurrent with arrest. Second, officers need to carry Faraday evidence bags to secure the electronic devices. This provides two fold security: it prevents any outgoing transmission as well as preventing any incoming transmission which could trigger a digital wipe and/or initiate a device.

  4. anon

    I have written/researched this issue extensively. So far, the Court has not limited a search incident to arrest based on the character of the object, it has limited in terms of temporality. That is to say, the time of the object is seized to when it’s searched. That, in my opinion, is how the Court will resolve this issue. To base it on the type of phone, type information, etc. would require police officers to become tech experts and would not be in keeping with the Court’s jurisprudence in this area e.g. the preference for bright line rules in the context of the Fourth Amendment. it’s far more likely that will adopt a bright line rule and in adopting a rule based on the temporality of the search, it would be in keeping with the Court’s decision in Chadwick.

  5. Pingback: Does History Support Investigative Searches Incident To Arrest? | Re’s Judicata

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