E.D.Cal.: Cell phone search incident can’t be sustained under Gant; following Wurie and Smith

Defendant was stopped for no headlights, and the officers could smell marijuana and suspected he was under the influence of alcohol or drugs. When he was handcuffed and arrested, the car was subject to search incident for the source, and the automobile exception also applied. The search incident or automobile search of his cell phone, however, violated Wurie (CA1) and Smith (Ohio) and would be suppressed because of the private nature of a cell phone. Also, Gant made a search incident of a cell phone unsustainable under Robinson. [After all, is Robinson’s cigarette pack remotely comparable to a smartphone? Hardly. Note that California state courts are contra with Riley granted cert with Wurie. Note also the suppression hearing was after the cert grant in Wurie and Riley.] United States v. Phillips, 2014 U.S. Dist. LEXIS 42294 (E.D. Cal. March 25, 2014):

However, the Court must also address the government’s assertion that the officers’ search of Defendant’s phone was justified under the search incident to arrest exception because it was a search conducted because the officers had reason to believe the vehicle contained evidence relevant to the offense of arrest. Gant, 556 U.S. at 343. In addressing this same issue, Wurie observed that “[t]he scope of a search incident to arrest” should be “‘commensurate with its purposes,’ which include ‘protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy.'” 728 F.3d at 9 (quoting Gant, 556 U.S. at 339) (citing Chimel, 395 U.S. at 339). In light of this principle, Wurie found that while “the searches at issue in Robinson and Edwards were the kinds of reasonable, self-limiting searches that do not offend the Fourth Amendment, even when conducted without a warrant[,]” the search of a cell phone is a “general, evidence gathering search[], not easily subject to any limiting principle,” similar to the searches at issue in Chadwick and Gant which were ultimately found unconstitutional. Id. at 10.

This Court shares the First Circuit’s concern that a rule allowing the search of cell phones incident to arrest “without any showing of probable cause linked to a particular place or item sought, … would give law enforcement automatic access to ‘a virtual warehouse’ of an individual’s ‘most intimate communications and photographs without probable cause’ if the individual is subject to a custodial arrest, even for something as minor as a traffic violation.” Id. at 9 (quoting Matthew E. Orso, Cellular Phones, Warrantless Searches, and the New Frontier of Fourth Amendment Jurisprudence, 50 Santa Clara L. Rev. 183, 211 (2010)).

Because the government in this case has failed to show that the search of a cell phone is necessary to protect arresting officers or to preserve destructible evidence, the Court finds that the warrantless search of cell phone data, such as text messages and pictures, is simply a “general, evidence gathering search,” which the Supreme Court’s search-incident-to-arrest jurisprudence does not permit. Accordingly, the officers’ search of Defendant’s cell phone was invalid under the search-incident-to-arrest doctrine.

One can hope that this newfound sensitivity of the courts to the privacy interest in a cell phone will make its way to SCOTUS. Justice Scalia’s recent off-the-cuff apparently erroneous comments, for example, that there might be no privacy interest in a conversation, contrary to 1967’s Katz is utterly contrary to his privacy concerns for the home in Kyllo and curtilage in Jardines. And there’s Hicks: “A search is a search, even if it happens to disclose nothing but the bottom of a turntable.”