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1st Circuit Punts on Phone Searches, Fast-Tracks to SCOTUS

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By William Peacock, Esq. on July 31, 2013 3:55 PM

A search incident to arrest. It's a simple concept. If the police are arresting you lawfully, they can dig through that grocery sack filled with cash and bullets that is dangling from your left arm. Or, as the court held in United States v. Robinson, and reiterated recently in Maryland v. King, the search of a person and the items within his immediate control require no additional justification beyond the arrest itself.

There are many good reasons to allow such a search, such as finding evidence of the crime in progress, preventing destruction of the evidence while the warrant is being sought, and of course, for officer safety.

But a cell phone? What's it going to do -- delete itself? Is Siri going to go on a killing spree? Is there any good reason for not chasing down a warrant?

If the police want to search the contents of your desktop computer, they probably need a warrant. If they want to dig through boxes of old tax returns and other paperwork, they also would probably need a warrant. If they want to access the computer in your pocket, also known as a smartphone, they may or may not be able to do so, sans warrant, as a search "incident to lawful arrest."

Think about the modern smartphone, especially if you are linked to email accounts or a cloud storage drive like DropBox or SkyDrive. The personal information on that phone is infinitely more expansive than boxes of files.

The take on this quandary varies. Many state supreme courts, including Florida and Ohio, require a warrant to dig through a person's cell or smartphone. So did the First Circuit, earlier this year, in United States v. Brima Wurie.

However, in an order denying rehearing en banc earlier this week, two First Circuit judges noted that there is a massive chasm across the state and circuit courts, with the First, Florida, and Ohio standing as "outliers" against, in part, the Seventh and Fifth Circuits.

Chief Judge Lynch noted that while the case "clearly" meets the criteria for en banc review, she voted to deny rehearing in order to "speed this case to the Supreme Court for its consideration," while also recognizing that the First Circuit's holding was contradictory to the view of the highest court in the state from which the case arose. That creates big issues for law enforcement officers.

Judge Howard, meanwhile, reiterated his dissent from the prior opinion and argued that his view looks even better in light of the Supreme Court's holding in Maryland v. King, where the court held that Maryland's DNA swabbing of all violent-crime arrestees was constitutional.

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