Volokh Conspiracy: Cell phones exempt from the automobile search exception, Ninth Circuit rules

With law school exam season finishing up, heres a new Fourth Amendment decision with facts that seem straight from a law school exam: United States v. Camou, authored by Judge Pregerson. In the new decision, the Ninth Circuit suppressed evidence from a 2009 search of a cell phone taken from a car incident to arrest at the border. The new ruling might not be the final word in the case. But the court does decide an important question along the way: The Ninth Circuit rules that if the police have probable cause to search a car under the automobile exception, they cant search cell phones found in the car.

I. The Facts

In 2009, officers arrested Camou at a border inspection checkpoint for hiding an undocumented immigrant in his truck. Minutes after the arrest, Camous phone rang several times from a number known to be from one of Camous co-conspirators. When Camou invoked his right to remain silent, officers decided to search the phone for evidence without a warrant. The phone search occurred 80 minutes after Camous arrest. The officer who searched the phone first searched through the call logs, then turned to the videos and photos. The officer scrolled through about 170 photos and saw that about 30 to 40 were child pornography. The officer stopped looking through the phone at that point and alerted authorities about the child pornography. Four days later, a warrant was obtained to search the cell phone for images of child pornography, leading to child porn charges against Camou.

The issue before the court is whether to suppress the fruits of the initial warrantless phone search as a violation of the Fourth Amendment. The Ninth Circuit rules that the cell phone search violated the Fourth Amendment and that the evidence must be suppressed.

II. The Ruling

Judge Pregersons analysis has five steps.

First, the search cannot be justified as a search incident to arrest because it occurred too late after the arrest and after too many intervening events had occurred. Eighty minutes had elapsed, and Camou and his co-defendants had been arrested, processed, and brought to interview rooms. According to Pregerson, that made the search too far removed from the initial arrest for the search-incident-to-arrest exception to apply.

Second, the exigent circumstances doctrine cannot apply because Riley v. California establishes that exigent circumstances generally wont justify a cell phone search and in any event, the scope of the search went beyond the exigency.

Third, the automobile exception cannot apply because the automobile exception does not apply to cell phones. This is an important legal ruling. Here, the Ninth Circuit extends the cell phones are different rationale of Riley to the context of automobile searches. This is an interesting and unsettled question I blogged about before, so its worth pausing to give a taste of Pregersons reasoning:

Given the Courts extensive analysis of cell phones as containers and cell phone searches in the vehicle context, we find no reason not to extend the reasoning in Riley from the search incident to arrest exception to the vehicle exception. Just as [c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestees person, so too do cell phones differ from any other object officers might find in a vehicle. Id. at 2489. Todays cell phones are unlike any of the container examples the Supreme Court has provided in the vehicle context. Whereas luggage, boxes, bags, clothing, lunch buckets, orange crates, wrapped packages, glove compartments, and locked trunks are capable of physically holding another object, see Belton, 453 U.S. at 460 n.4, [m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse, Riley, 134 S. Ct. at 248889. In fact, a cell phone search would typically expose to the government far more than the most exhaustive search of a house. Id. at 2491 (emphasis in original).

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Volokh Conspiracy: Cell phones exempt from the automobile search exception, Ninth Circuit rules