{"id":10369,"date":"2014-02-12T11:16:36","date_gmt":"2014-02-12T00:44:27","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2014-02-11T16:45:37","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=10369","title":{"rendered":"N.D.Ga. rejects Wurie<\/em> three days before SCOTUS grants cert in it"},"content":{"rendered":"

Cell phone search incident at time of arrest is upheld, and the First Circuit\u2019s Wurie is rejected. [Note: SCOTUS granted cert in Wurie three days later. It’s not that hard to keep up if you have the slightest curiosity.] United States v. Reyes, 2014 U.S. Dist. LEXIS 16441 (N.D. Ga. January 14, 2014):<\/p>\n

<\/p>\n

In addition, Chaidez’s arguments about the search of the cell phone generally are rejected. First, the Court concludes that Wurie’s categorical rejection of the searches of cell phones incident to lawful arrest is not supported by Supreme Court precedent or the overwhelming majority of other federal courts that have considered the issue. See United States v. Drayton, 536 U.S. 194, 201 (2002) (“[F]or the most part per se rules are inappropriate in the Fourth Amendment context.”).<\/p>\n

Second, the undersigned agrees with the Eleventh Circuit that this is a difficult question and to prophesize how the Supreme Court or the Eleventh Circuit will rule on this issue is fraught with uncertainty. The Court recognizes that cell phones today are repositories of far greater information than cell phones of even a few years vintage, and that the purposes and uses of these devices are far greater than items which might traditionally have been the subject of incident-to-arrest searches, such as wallets or purses.<\/p>\n

Nonetheless, the Court agrees with those courts that have concluded that an arrestee’s cell phone properly may be searched without a warrant as incident to his lawful arrest. United States v. Rodriguez, 702 F.3d 206, 209-10 (5th Cir. 2012) (relying on United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007) (cell phone properly searched without a warrant pursuant to defendant’s arrest for drug trafficking)); United States v. Flores-Lopez, 670 F.3d 803, 810 (7th Cir. 2012) (upholding search incident to arrest of cell phone for its phone number but questioning whether more invasive search would be permissible); Silvan W. v. Briggs, 309 Fed. Appx. 216, 225 (10th Cir. Jan. 23, 2009) (holding that “the permissible scope of a search incident to arrest includes the contents of a cell phone found on the arrestee’s person”) (citing Finley, 477 F.3d at 260); United States v. Mendoza, 421 F.3d 663, 668 (8th Cir. 2005); United States v. Murphy, 552 F.3d 405, 410-12 (4th Cir. 2009) (upholding search of cell phone as incident to arrest); United States v. Ortiz, 84 F.3d 977, 982-84 (7th Cir. 1996) (officers were authorized to seize pursuant to arrest a suspected heroin supplier’s pager and wristwatch containing an electronic telephone directory in order to preserve evidence, since the pager’s electronic memory was finite or could easily be destroyed or lost); United States v. Gomez, 807 F. Supp. 2d 1134, 1149 (S.D. Fla. 2011) (holding that “the immediate search at the scene of the cell phone’s call log history, limited to phone calls from the preceding 24-48 hours, in our view, was reasonable and appropriate under Supreme Court and Eleventh Circuit precedent”); see also United States v. Henry, 936 F. Supp. 2d 1279, 1284 (N.D. Ga. 2013) (Batten, J., adopting Baverman, M.J.) (citing cases); United States v. McCray, No. CR408-231, 2009 WL 29607, at * 3 (S.D. Ga. Jan. 3, 2009) (collecting cases). Cf. United States v. Quintana, 594 F. Supp. 2d 1291, 1299-1300 (M.D. Fla. 2009) (suppressing search of cell phone’s digital photo album incident to arrest for driving while license suspended).<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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