Privacy Law

SCOTUS should decide if cops need warrant to search cellphones at arrest, two appeals judges say


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Two federal appeals judges are explaining why they voted to deny an en banc rehearing of a decision requiring police to get a warrant before searching cellphones incident to arrest.

The Boston-based 1st U.S. Circuit Court of Appeals denied the rehearing in an order (PDF) released Monday, the Wall Street Journal Law Blog (sub. req.) reports. Chief Judge Sandra Lynch and Judge Jeffrey Howard both issued statements with the denial saying the issue needs to be decided by the U.S. Supreme 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,” Lynch wrote. “The decision in this case creates a circuit split with respect to the validity of warrantless searches of cellphones incident to arrest. State courts similarly are divided. As the government points out, the differing standards which the courts have developed provide confusing and often contradictory guidance to law enforcement.”

Howard agreed that the issue “requires an authoritative answer from the Supreme Court” and said he sees no reason to delay a speedy consideration by reconsidering the case. He added that his dissent from the original ruling “looks better in light of the Supreme Court’s recent opinion in Maryland v. King” upholding DNA swabs for arrestees.

The 1st Circuit had ruled in May that Boston police violated the Fourth Amendment rights of Brima Wurie when they searched his cellphone after observing him making what appeared to be a drug sale.

Police found calls from a number labeled “my house” and traced it to the apartment of Wurie’s girlfriend, according to the Law Blog story. They searched the place after obtaining a warrant, finding drugs, money and a gun. The 1st Circuit opinion had overturned his conviction and sentence of more than 21 years in prison.

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