The U.S. Supreme Court recently granted certiorari in two cases involving searches of cell phones incident to arrest. Riley v. California, No. 13-132, review granted 1/17/14; United States v. Wurie, No. 13-212, review granted 1/17/14.
There is a split of authority on this issue: some courts have held that existing Supreme Court precedent involving search incident to arrest is applicable, i.e., that a phone is no different than any other hand-held container and may be searched incident to arrest without a warrant, probable cause, or even reasonable suspicion. Other courts have refused to apply that precedent, treating cell phones as sui generis because of the tremendous amount of personal information contained in a typical smart phone.
, the First Circuit held that mobile phones are different from the containers other courts have allowed to be searched incident to arrest. It held unconstitutional a police search of the defendant’s numbers in the call log on his mobile phone incident to his arrest. United States v. Wurie, 728 F.3d 1 (1st Cir. 2013)
. In Riley
, the California state court upheld a warrantless search of the defendant’s mobile phone address book, photographs and videos incident to his arrest for a firearms offense that then linked him to a drive-by shooting. People v. Riley, No. SCD226240, 2013 WL 475242 (Cal. Ct. App. 2013)
(not certified for publication in official reports and not to be cited pursuant to California Rules of Court, Rule 8.1115(a) except as provided in Rule 8.1115(b)).