First Circuit Judges Say Supreme Court Should Decide Cellphone Warrantless Search Case
Two judges on the 1st U.S. Circuit Court of Appeals voted to deny an en banc rehearing of the circuit’s 2-1 decision that Boston police needed a warrant to search the cellphone of a man arrested in 2007 for suspected drug dealing. But they said the Supreme Court should hear the case. The decision put the 1st Circuit at odds with other federal appeals courts, and the Justice Department had asked the court to hear the case “en banc.” Meanwhile, the 5th U.S. Circuit Court of Appeals ruled in a decision released Tuesday that court orders authorized by the Stored Communications Act to compel carriers to provide historic cell site information of their subscribers don’t violate 4th Amendment protections against unreasonable search and seizure.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
"I vote to deny rehearing en banc not because the case does not meet the criteria for en banc review,” wrote Chief Judge Sandra Lynch (http://1.usa.gov/18KYeXk). “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.” Lynch wasn’t on the panel that heard the case. Judge Jeffrey Howard, who dissented in the 2-1 decision, agreed. “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,” Howard wrote. The Supreme Court’s recent decision in Maryland v. King, “in which the Court held as constitutional Maryland’s practice of swabbing violent-crime arrestees for DNA samples,” suggests “my dissent looks better,” he said.
In June 2011, Brima Wurie was sentenced to 262 months in federal prison to be followed by five years of supervised release after he was convicted in February 2010 of distributing crack cocaine, possessing additional crack with intent to distribute and being a felon-in-possession of a firearm. Wurie was arrested in 2007 after police observed him selling crack cocaine to another man. After his arrest, police noted he received repeated calls from a number that showed up as “my house.” After determining the location, they went to the house and sought a search warrant. “After obtaining the warrant, the officers seized from the apartment, among other things, 215 grams of crack cocaine, a firearm, ammunition, four bags of marijuana, drug paraphernalia, and $250 in cash,” said the 1st Circuit’s 2-1 decision in May (http://1.usa.gov/13sfJHb). “Wurie was charged with possessing with intent to distribute and distributing cocaine base and with being a felon in possession of a firearm and ammunition. He filed a motion to suppress the evidence obtained as a result of the warrantless search of his cell phone.”
The three-judge panel had vacated the decision. “Since the time of its framing, ’the central concern underlying the Fourth Amendment’ has been ensuring that law enforcement officials do not have ‘unbridled discretion to rummage at will among a person’s private effects,'” wrote Judge Norman Stahl in May. “Today, many Americans store their most personal ‘papers’ and ‘effects’ ... in electronic format on a cell phone, carried on the person. Allowing the police to search that data without a warrant any time they conduct a lawful arrest would, in our view, create ‘a serious and recurring threat to the privacy of countless individuals.'"
A three-judge panel of the New Orleans-based 5th Circuit said a magistrate was wrong to deny government applications in three separate investigations seeking historic cellphone data (http://1.usa.gov/17RC3xr). A district court had upheld the magistrate. “The district court held that the SCA violates the Fourth Amendment because the Act allows the United States to obtain a court order compelling a cell phone company to disclose historical cell site records merely based on a showing of ’specific and articulable facts,’ rather than probable cause,” said the decision by Judge Edith Clement.
The ACLU and the government differed in how the applications for data should be viewed, Clement wrote. “The ACLU focuses on what information cell site data reveals -- location information -- and proceeds to analyze the § 2703(d) orders under the Supreme Court’s precedents on tracking devices,” she said. “In contrast, the Government focuses on who is gathering the data -- private cell service providers, not government officers -- and analyzes the provision under the Court’s business records cases.” Clement noted that use of a cellphone is entirely voluntary: “The Government does not require a member of the public to own or carry a phone. ... As the days of monopoly phone companies are past, the Government does not require him to obtain his cell phone service from a particular service provider that keeps historical cell site records for its subscribers, either. And it does not require him to make a call, let alone to make a call at a specific location."
The 5th Circuit supported the view of the government on how the SCA should work in practice. “The statute conforms to existing Supreme Court Fourth Amendment precedent,” wrote Clement. “This precedent, as it now stands, does not recognize a situation where a conventional order for a third party’s voluntarily created business records transforms into a Fourth Amendment search or seizure when the records cover more than some specified time period or shed light on a target’s activities in an area traditionally protected from governmental intrusion. We decline to create a new rule to hold that Congress’s balancing of privacy and safety is unconstitutional.”