To Seize or Not To Seize? Thatís The Question!

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To Seize or Not To Seize? Thatís The Question!

By Jim Smith, OSS Expert Witness | Mon, 9 Jun 2014

Since 1969, law enforcement officers have been guided in search coincidental to arrest by Chimel v. California, in that case the Supreme Court ruled that if police arrest an individual, they may, without a search warrant, search the body of the person and "the area into which he might reach," perhaps to destroy evidence or to seize a weapon. With the proliferation of handheld electronic devices, such as Smart Phones, PDAís Tablets and the like, will Chimel still stand as the seminal case in search coincidental to arrest? The Court may answer that question this week.

Two Cases to Be Decided This Week

Riley v. California

The Court is set to rule this June on two cases involving the seizure of cell phone evidence taken from a suspectís cell phone as search coincidental to arrest. The first case is that of Riley v. California and it involves a Smart Phone. David Riley was pulled over in San Diego for driving with expired tags in 2009. When the police officers searched him, they also searched his Samsung Instinct M800 smartphone and found two incriminating photos: One of Riley posing with a gang member and another of a red Oldsmobile the officers believed was involved in a drive-by shooting.

What began as an arrest for a minor incident ended with prosecutors successfully convincing a jury to convict Riley of attempted murder and assault with a semiautomatic weapon. He was sentenced to 15 years to life in prison. He appealed, arguing the evidence obtained when searching his cellphone should have been thrown out.

United States v. Wurie

The second case is that of the United States v. Wurie. In this case Brima Wurie was arrested in Boston in 2007 when police suspected he was selling drugs from his car. When police officers confiscated his LG flip phone, they found a series of incoming calls from a number labeled "my house" in Wurie's contact list, with a photo of a woman holding a baby as the background.

Police traced the location of the number, and after obtaining a warrant, found a stash of crack cocaine, a firearm, ammunition and marijuana in the house. Wurie was sentenced to 22 years in prison.

Wurie appealed, arguing the search of his house resulted from an illegal search of his phone. The First U.S. Circuit Court of Appeals agreed, dismissing two of the three charges in the case. In response to Wurie's partial win, the U.S. government appealed to the Supreme Court.

Both cases involve retrieving evidence contained within a handheld electronic devices, one device an older flip phone with limited capabilities and the second a smart phone with the capacity of a personal computer, from criminal suspects. The court is hearing these cases as seizures resulting from a search coincidental to arrest, from a criminal suspect, and as such the court is limiting it scope to the case law established under the Chimel Ruling.

The Broader Issues Not Yet Addressed By the Court

The much broader issue of when law enforcement officers can seize electronically recorded, stored or transmitted evidence from citizens, when it becomes apparent to the law enforcement officers on a scene that they have been recorded by that citizen, is a major question, that the court has not yet address.

Justice Alito, in his case concurring opinion writes in Jones v. The United States, "New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable. The majority in Jones held "Attaching a GPS device to a vehicle and then using the device to monitor the vehicleís movements constitutes a search under the Fourth Amendment."

Justice Alitoís opinion may offer a glimpse into how the court will eventually decide this issue, but donít look to the Riley or Wurie decisions to clarify the issue as to when to seize or not to seize. That issue still depends largely upon the totality of the circumstances and will be judged on a case by case basis.

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