728 F.3d 1 (1st Cir. 2013), 11-1792, United States v. Wurie

Docket Nº:11-1792
Citation:728 F.3d 1
Opinion Judge:STAHL, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Appellee, v. BRIMA WURIE, Defendant, Appellant
Attorney:Ian Gold, Assistant Federal Public Defender, for appellant. Michael R. Dreeben, Attorney, United States Department of Justice, with whom Carmen M. Ortiz, United States Attorney, and Kelly Begg Lawrence, Assistant United States Attorney, were on brief for appellee.
Judge Panel:Before Howard, Stahl, and Lipez, Circuit Judges. HOWARD, Circuit Judge, dissenting. HOWARD HOWARD, Circuit Judge, dissenting.
Case Date:May 17, 2013
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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728 F.3d 1 (1st Cir. 2013)

UNITED STATES OF AMERICA, Appellee,

v.

BRIMA WURIE, Defendant, Appellant

No. 11-1792

United States Court of Appeals, First Circuit

May 17, 2013

As Amended October 2, 2013.

Petition for certiorari filed at, 08/15/2013.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Richard G. Stearns, U.S. District Judge.

Ian Gold, Assistant Federal Public Defender, for appellant.

Michael R. Dreeben, Attorney, United States Department of Justice, with whom Carmen M. Ortiz, United States Attorney, and Kelly Begg Lawrence, Assistant United States Attorney, were on brief for appellee.

Before Howard, Stahl, and Lipez, Circuit Judges. HOWARD, Circuit Judge, dissenting.

OPINION

STAHL, Circuit Judge.

This case requires us to decide whether the police, after seizing a cell phone from an individual's person as part of his lawful arrest, can search the phone's data without a warrant. We conclude that such a search exceeds the boundaries of the Fourth Amendment search-incident-to-arrest exception. Because the government has not argued that the search here was justified by exigent circumstances or any other exception to the warrant requirement, we reverse the denial of defendant-appellant Brima Wurie's motion to suppress, vacate his conviction, and remand his case to the district court.

I. Facts & Background

On the evening of September 5, 2007, Sergeant Detective Paul Murphy of the Boston Police Department (BPD) was performing routine surveillance in South Boston. He observed Brima Wurie, who was driving a Nissan Altima, stop in the parking lot of a Lil Peach convenience store, pick up a man later identified as Fred Wade, and engage in what Murphy believed was a drug sale in the car. Murphy and another BPD officer subsequently stopped Wade and found two plastic bags in his pocket, each containing 3.5 grams of crack cocaine. Wade admitted that he had bought the drugs from " B," the man driving the Altima. Wade also told the officers

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that " B" lived in South Boston and sold crack cocaine.

Murphy notified a third BPD officer, who was following the Altima. After Wurie parked the car, that officer arrested Wurie for distributing crack cocaine, read him Miranda warnings, and took him to the police station. When Wurie arrived at the station, two cell phones, a set of keys, and $1,275 in cash were taken from him.

Five to ten minutes after Wurie arrived at the station, but before he was booked, two other BPD officers noticed that one of Wurie's cell phones, a gray Verizon LG phone, was repeatedly receiving calls from a number identified as " my house" on the external caller ID screen on the front of the phone. The officers were able to see the caller ID screen, and the " my house" label, in plain view. After about five more minutes, the officers opened the phone to look at Wurie's call log. Immediately upon opening the phone, the officers saw a photograph of a young black woman holding a baby, which was set as the phone's " wallpaper." The officers then pressed one button on the phone, which allowed them to access the phone's call log. The call log showed the incoming calls from " my house." The officers pressed one more button to determine the phone number associated with the " my house" caller ID reference.

One of the officers typed that phone number into an online white pages directory, which revealed that the address associated with the number was on Silver Street in South Boston, not far from where Wurie had parked his car just before he was arrested. The name associated with the address was Manny Cristal.

Sergeant Detective Murphy then gave Wurie a new set of Miranda warnings and asked him a series of questions. Wurie said, among other things, that he lived at an address on Speedwell Street in Dorchester and that he had only been " cruising around" in South Boston. He denied having stopped at the Lil Peach store, having given anyone a ride, and having sold crack cocaine.

Suspecting that Wurie was a drug dealer, that he was lying about his address, and that he might have drugs hidden at his house, Murphy took Wurie's keys and, with other officers, went to the Silver Street address associated with the " my house" number. One of the mailboxes at that address listed the names Wurie and Cristal. Through the first-floor apartment window, the officers saw a black woman who looked like the woman whose picture appeared on Wurie's cell phone wallpaper. The officers entered the apartment to " freeze" it while they obtained a search warrant. Inside the apartment, they found a sleeping child who looked like the child in the picture on Wurie's phone. 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.

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 parties agreed that the relevant facts were not in dispute and that an evidentiary hearing was unnecessary. The district court denied Wurie's motion to suppress, United States v. Wurie, 612 F.Supp.2d 104 (D. Mass. 2009), and, after a four-day trial, the jury found Wurie guilty on all three counts. He was sentenced to 262 months in prison. This appeal followed.

II. Analysis

In considering the denial of a motion to suppress, we review the district court's

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factual findings for clear error and its legal conclusions de novo. United States v. Kearney, 672 F.3d 81, 88-89 (1st Cir. 2012).

The Fourth Amendment protects " [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and provides that " no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. The amendment grew out of American colonial opposition to British search and seizure practices, most notably the use of writs of assistance, which gave customs officials broad latitude to search houses, shops, cellars, warehouses, and other places for smuggled goods. The Honorable M. Blane Michael, Reading the Fourth Amendment: Guidance from the Mischief that Gave it Birth, 85 N.Y.U. L. Rev. 905, 907-09 (2010); see generally William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning 602-1791 (2009).

James Otis, a lawyer who challenged the use of writs of assistance in a 1761 case, famously described the practice as " plac[ing] the liberty of every man in the hands of every petty officer" and sounded two main themes: the need to protect the privacy of the home (what he called the " fundamental . . . Privilege of House" ), Michael, supra, at 908 (citations and internal quotation marks omitted), and " the inevitability of abuse when government officials have the sort of unlimited discretion sanctioned by the writ," id. at 909. The Supreme Court has described Otis's argument as " perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country." Boyd v. United States, 116 U.S. 616, 625, 6 S.Ct. 524, 29 L.Ed. 746 (1886).

Today, a warrantless search is per S.E. unreasonable under the Fourth Amendment, unless one of " a few specifically established and well-delineated exceptions" applies. Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)) (internal quotation marks omitted). One of those exceptions allows the police, when they make a lawful arrest, to search " the arrestee's person and the area within his immediate control." Id. at 339 (quoting Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)) (internal quotation marks omitted). In recent years, courts have grappled with the question of whether the search-incident-to-arrest exception extends to data within an arrestee's cell phone.1

A. The legal landscape

The modern search-incident-to-arrest doctrine emerged from Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), in which the Supreme Court held that a warrantless search of the defendant's entire house was not justified by the fact that it occurred as part of his valid arrest. The Court found that the search-incident-to-arrest exception permits an arresting officer " to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction" and to search " the area into

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which an arrestee might reach in order to grab a weapon or evidentiary items." Id. at 763. The justifications underlying the exception, as articulated in Chimel, were protecting officer safety and ensuring the preservation of evidence. Id.

Four years later, in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), the Supreme Court examined how the search-incident-to-arrest exception applies to searches of the person. Robinson was arrested for driving with a revoked license, and in conducting a pat down, the arresting officer felt an object that he could not identify in Robinson's coat pocket. Id. at 220-23. He removed the object, which turned out to be a cigarette package, and then felt the package and determined that it contained something other than cigarettes. Upon opening the package, the officer found fourteen capsules of heroin. Id. at 223. The Court held that the warrantless search of the cigarette package was valid, explaining that the police have the authority to conduct " a full search of the person" incident to a lawful arrest. Id. at 235.

Robinson reiterated the...

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