CA1 suggests SCOTUS review categorical rule for search incident of containers

On denial of rehearing, the First Circuit suggests that SCOTUS take review of a case to decide the scope of containers subject to search incident, comparing Robinson (crumpled cigarette pack) and Riley (cell phones). United States v. Perez, 2024 U.S. App. LEXIS 21377 (1st Cir. Aug. 23, 2024)*:

Under binding Supreme Court precedent, the search incident to arrest exception to the Fourth Amendment categorically allows not only the seizure but also the warrantless search of the contents of certain physical containers that are “of the person” of the arrestee. See United States v. Robinson, 414 U.S. 218, 235-36 (1973) (crumpled cigarette package in a coat pocket); Gustafson v. Florida, 414 U.S. 260, 262, 266 (1973) (“cigarette box” in a coat pocket); United States v. Edwards, 415 U.S. 800, 804-05 (1974) (clothing). There remains great uncertainty, however, about the kinds of containers that are subject to that categorical rule.

In United States v. Eatherton, this court acknowledged the uncertainty but held that the categorical rule applies to a briefcase held by an arrestee because distinctions between a briefcase in hand and a cigarette container in a pocket were too “gossamer” to justify drawing a line. 519 F.2d 603, 610 (1st Cir. 1975). This petition for rehearing en banc asks us to reconsider that nearly half-century-old precedent in the context of a backpack that the arrestee was wearing at the time of his arrest.