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

With law school exam season finishing up, here's 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 can't 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, Camou's phone rang several times from a number known to be from one of Camou's 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 Camou's 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 Pregerson's 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 won't 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 it's worth pausing to give a taste of Pregerson's reasoning:

Given the Court's 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 arrestee's person," so too do cell phones differ from any other object officers might find in a vehicle. Id. at 2489. Today's 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 2488-89. 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).

Under this rule, as I understand it, if officers have probable cause to believe that there is evidence in a car, they can search the car without a warrant and open all containers inside. But if they come across a cell phone, they need to get a warrant to search it: The cell phone is not a "container" that can be searched under the automobile exception.

Fourth, the Ninth Circuit rules that the inevitable discovery exception does not apply.

Fifth, the Ninth Circuit rules that the good-faith exception does not apply. Here's Judge Pregerson:

The governing law at the time of the search made clear that a search incident to arrest had to be contemporaneous with the arrest. See, e.g., United States v. Hudson, 100 F.3d 409, 1419 (9th Cir. 1996). The government has not met its burden to prove that a reasonably well-trained officer in Agent Walla's position could have believed that the search of Camou's cell phone one hour and 20 minutes after Camou's arrest was lawful. The government does not advance any arguments except that in searching the phone Agent Walla was not acting "through 'reckless or deliberate' officer misconduct," and that Herring controls. . . .

The Supreme Court has never applied the good faith exception to excuse an officer who was negligent himself, and whose negligence directly led to the violation of the defendant's constitutional rights. [FN3: In fact, because "objectively reasonable" and "negligent" are mutually exclusive, the only way to reconcile the "objectively reasonable reliance" rule established in Leon with Herring is to conclude that the officer who executed the unconstitutional search or seizure cannot have been the negligent actor. Herring should be read as holding instead that when an officer reasonably relies on incorrect information that was the result of another individual's "isolated" and "attenuated" negligence, the good faith exception applies.] Here, the government fails to assert that Agent Walla relied on anyone or anything in conducting his search of Camou's cell phone, let alone that any reliance was reasonable. The government instead only asserts that by searching the phone, Agent Walla was not acting "recklessly[,] or deliberately" misbehaving. In this case, the good faith exception cannot apply.

III. My Analysis

There's a lot packed into this opinion. Here are just a few thoughts on it.

First, the question of how much time can elapse before a search is allowed incident to arrest was fully briefed before the Supreme Court but not decided in Riley, where a cell-phone search occurred several hours after the arrest. I haven't looked closely at the Ninth Circuit's cases to say whether Judge Pregerson applied Ninth Circuit precedents accurately, but there appears to be caselaw in other circuits that takes a contrary view. See, e.g., United States v. Baldwin, 644 F.2d 381, 384 (5th Cir. 1981) (search of wallet several hours after arrest is a valid search incident to arrest). I don't know if the issue is important enough to grab the SG's attention in light of Riley, but it seems like there's a split on the broad issue of the timing of searches incident to arrest.

Second, the extension of Riley to the automobile exception is an important doctrinal development.

Third, the Ninth Circuit's approach to the good-faith exception strikes me as odd. First, the Ninth Circuit's standard seems to be a combination of Herring and Davis, without ever citing Davis. To the extent the issue is the Davis question of relying on the state of the law at the time of the search, I don't know why the Ninth Circuit focuses on the time aspect of the the search incident to arrest exception. Even assuming that a reasonable officer would have known that he couldn't rely on that exception, how could the reasonable officer know that the automobile exception wouldn't apply? The first ruling that a cell phone found in a car can't be searched under the automobile exception is the Ninth Circuit's opinion. As far as I know, no court had even mentioned the issue at the time this cell phone search occurred. See my post from 2009, just a few weeks after the search, here/a>.

Fourth, I wonder why the border search exception wasn't discussed in this case. Maybe the government decided that there were so many other warrant exceptions in play that it was confusing to add one more? Alternatively, maybe there's a reason it doesn't apply that I'm just missing.