Two weeks ago, when DOJ petitioned for rehearing en banc in United States v. Wurie, the Fourth Amendment case on searching cell phones incident to arrest, I wrote that the petition for rehearing was a possible preview of a future DOJ cert petition:
I wouldn’t be surprised if this filing offers us a preview of a future cert petition. The arguments in the petition resemble the kinds of arguments that would be made in a cert petition to the Supreme Court, and en banc review is relatively rare in the 1st Circuit. Plus, Deputy SG Michael Dreeben argued Wurie before the original panel. Filing a petition for rehearing may also be a way of keeping other cases out of the Supreme Court in the short term; the possibility of en banc review arguably keeps Wurie out of the split count. Either way, stay tuned.
Well, the denial of rehearing didn’t take long: Today the First Circuit denied rehearing en banc. Notably, both Chief Judge Lynch and Judge Howard authored separate statements asking the Supreme Court to step in and review the issue. Here is the entirety of Judge Lunch’s statement:
I vote to deny rehearing en banc not because the case does not meet the criteria for en banc review. It clearly does. Indeed, the issues are very important and very complex.
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. There are two very able opinions from this court, and en banc review in this Court could not improve on their presentations of the issues.
The decision in this case creates a circuit split with respect to the validity of warrantless searches of cell phones 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. Indeed, the highest court in the state which this case arose has taken a view of the law that is contrary to the decision in this case, leaving the police in need of further guidance.
Only the Supreme Court can finally resolve these issues, and I hope it will.
Judge Howard’s statement first argued the merits a bit and then added a passage echoing Chief Judge Lynch:
Ultimately this issue requires an authoritative answer from the Supreme Court, and our intermediate review would do little to mend the growing split among lower courts. Both the Florida Supreme Court and the Ohio Supreme Court have adopted a warrant requirement similar to the one the majority found necessary in this case. See Smallwood v. State, 113 So. 3d 724 (Fla. 2013); State v. Smith, 920 N.E.2d 949 (Ohio 2009). Leaving aside these outliers (and make no mistake, we are now an outlier in this field), those courts in agreement on this issue have often reached the same conclusions relying on different reasoning. Compare United States v. Flores-Lopez, 670 F.3d 803, 809-10 (7th Cir. 2012) (looking at risk to officer safety and preservation of evidence), and United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007) (analyzing the issue as a matter of searching for evidence of the crime of arrest). Clearly, cell phones sit at the intersection of several different Fourth Amendment doctrines, and I suspect that each new case will result in a slightly different interpretation of how to treat these searches. Given this likely outcome, I welcome speedy resolution from the Supreme Court, and see no need to delay by reconsidering this case.
I’ve blogged before that I think this issue is very likely to get to the Supreme Court this coming Term, and with statements like that my prediction becomes an even better bet. Judicial statements like that amount to amicus briefs in support of future cert petitions, and the Court tends to pay attention to them. As for which case might get to the Court first, I’m not sure. There are a few cases in the pipeline, although I don’t know if any cert petitions actually have been filed yet. If readers know of any such petitions, please let me know. (Full disclosure: A few months ago, I briefly consulted with the defense attorney on one of the cases in the pipeline. However, at this point I don’t expect that I will be working on any of the cases at the cert stage.)
My chief worry about the Court taking a case now is that cell phone technology and its adoption is changing quickly. Cell phones in use today are very different from cell phones in use 5 years ago, which were very different from cell phones in use ten years ago. A Supreme Court decision about how the Fourth Amendment applies to “cell phones” may only last for a short time if the nature of cell phones is different a decade from now from what it is today. To avoid this problem, I have stressed that the Court should generally wait until technology stabilizes before agreeing to review Fourth Amendment cases involving computers and new technologies See An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 476, 539-42 (2011). Granted, the deep split on the issue now may make delay difficult. And perhaps the technology has evolved enough to make a decision reasonably long-lasting. So while I suspect the Court will likely take one of these cases, I admit to some discomfort that it may still be too soon along the technology curve for the Supreme Court to step in.
Finally, as I’ve mentioned before, I posted my own thoughts about how the Supreme Court should resolve the question when it does reach the merits here: Foreword: Accounting for Technological Change, 36 Harv. J. L. & Pub. Pol’y 403 (2013).