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First Circuit Defers to Justices on Cellphone Searches

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  • suesarkis2001
    First Circuit Defers to Justices on Cellphone Searches By _Mike Scarcella_ (https://plus.google.com/114999206104350183752/about) The National Law Journal
    Message 1 of 1 , Jul 30, 2013
      First Circuit Defers to Justices on Cellphone Searches
      By _Mike Scarcella_ (https://plus.google.com/114999206104350183752/about)
      The National Law Journal July 29,

      U.S. Court of Appeals for the 1st Circuit Chief Judge Sandra L. Lynch

      Hoping the U.S. Supreme Court would take up the matter, a federal appeals
      court in Massachusetts said it would not revisit a ruling that forces police
      to obtain a warrant to search data on the cellphone of a person who's
      under arrest.
      _The U.S. Court of Appeals for the First Circuit on July 29_
      (http://legaltimes.typepad.com/files/wurie-op.pdf) declined _the Justice Department's
      request for full-court review_
      (http://legaltimes.typepad.com/files/wurie.pdf) of the May panel decision in USA v. Wurie . The three-judge panel ruling
      deepened the divide among federal appellate courts, setting the stage for a
      potential government petition to the high court.
      "I vote to deny rehearing en banc because I think the preferable course is
      to speed this case to the Supreme Court for its consideration," Chief Judge
      Sandra Lynch of the First Circuit wrote Monday, explaining her vote.
      "There are two very able opinions from this court, and en banc review in this
      Court could not improve on their presentations of the issues."
      Lynch said "the differing standards which the courts have developed provide
      confusing and often contradictory guidance to law enforcement." She added:
      "Only the Supreme Court can finally resolve these issues, and I hope it
      Prosecutors in July asked the full First Circuit to review the panel's
      decision. An assistant U.S. attorney in Boston, Kelly Begg Lawrence, was on the
      brief with deputy solicitor general Michael Dreeben, who also argued for
      the government.
      The government's legal team argued that the "unprecedented 'bright-line
      rule' established by the panel majority…conflicts with Fourth Amendment
      principles long recognized by the Supreme Court and puts this circuit into
      conflict with three other circuits and the highest court of Massachusetts."
      The Supreme Court, the government lawyers wrote, "has long held that the
      police may conduct a full search of any items found on an arrestee’s person,
      a principle based in substantial part on a person’s diminished expectation
      of privacy in his person once he has been lawfully arrested."
      The police, Justice Department lawyers said, only briefly examined the call
      log of Brima Wurie’s phone—a "flip" model, not a smartphone. A trial
      judge declined to suppress evidence in the gun and drug prosecution of Wurie.
      (The First Circuit panel reversed that ruling.)
      "In cases involving more intrusive searches of computer-like phones, the
      core Fourth Amendment requirement of reasonableness protects against
      unwarranted invasions of privacy, as the Supreme Court has repeatedly stated,"
      Lawrence wrote. "But a categorical exception for cell phones cannot be
      reconciled with the settled rule that officers need not obtain a warrant before
      searching items found on an arrestee."
      Judge Jeffrey Howard of the First Circuit, who sided with the government in
      a dissent in the panel opinion, wrote on Monday that his views have not
      changed. The panel majority, Howard said, created a rule that's "simply
      without precedent."
      Howard wrote that "for prudential reasons, however, I believe en banc
      rehearing is unnecessary. Ultimately this issue requires an authoritative answer
      from the Supreme Court, and our intermediate review would do little to
      mend the growing split among lower courts."
      Mobile phones, Howard wrote, "sit at the intersection of several different
      Fourth Amendment doctrines, and I suspect that each new case will result in
      a slightly different interpretation of how to treat these searches." He
      welcomed "speedy resolution from the Supreme Court, and see no need to delay
      by reconsidering this case."
      In May, when the First Circuit issued its decision, Fourth Amendment
      scholar Orin Kerr said in a blog post on Volokh Conspiracy that "Supreme Court
      review of this legal question is highly likely sometime soon."
      Kerr, who teaches criminal procedure at The George Washington University
      Law School, wrote that the division among lower courts is "substantial."

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