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
_The U.S. Court of Appeals for the First Circuit on July 29_
declined _the Justice Department's
request for full-court review_
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'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
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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