VA: Davis good faith saves SI of a cell phone before Riley; even though no state case permitted it, CA4 did

Defendant’s cell phone was searched without a warrant months before Riley even had its cert grant. Even though no state case held that the warrant requirement applied to cell phones, the Fourth Circuit had concluded that the search incident doctrine was good enough, so that makes the Davis good faith exception apply. [After the Jones GPS case, this is a complete fiction. To say that search incident of a cigarette package would support a cell phone search after that really doesn’t even pass the laugh test to me.] Rivera v. Commonwealth, 2015 Va. App. LEXIS 315 (Nov. 10, 2015):

Ample persuasive authority supported the warrantless search of a cell phone incident to a lawful arrest before the Riley decision. Although no Virginia law expressly addressed the issue, the Fourth Circuit upheld the warrantless search of a cell phone incident to arrest in United States v. Murphy, 552 F.3d 405, 410-12 (4th Cir. 2009). At the time that Officer Fogarty searched Rivera’s cell phone, the Fifth, Seventh, Eighth, and Tenth Circuits had reached similar conclusions. See United States v. Rodriguez, 702 F.3d 206, 209-10 (5th Cir. 2012); United States v. Flores-Lopez, 670 F.3d 803, 809-10 (7th Cir. 2012); Silvan W. v. Briggs, 309 F. App’x. 216, 225 (10th Cir. 2009); United States v. Mendoza, 421 F.3d 663, 668 (8th Cir. 2005). In addition, several state courts of last resort had upheld warrantless searches of at least some of the digital content of cell phones incident to arrest. See, e.g., People v. Diaz, 51 Cal. 4th 84, 119 Cal. Rptr. 3d 105, 244 P.3d 501, 511 (Cal. 2011); Hawkins v. State, 290 Ga. 785, 723 S.E.2d 924, 926 (Ga. 2012); Commonwealth v. Phifer, 463 Mass. 790, 979 N.E.2d 210, 216 (Mass. 2012). Several courts, however, questioned the validity of warrantless searches of cell phones incident to arrest. See, e.g., United States v. Wurie, 728 F.3d 1 (1st Cir. 2013); Smallwood v. State, 113 So. 3d 724, 735-36 (Fla. 2013); State v. Smith, 124 Ohio St. 3d 163, 2009 Ohio 6426, 920 N.E.2d 949, 953-56 (Ohio 2009).