The Supremes heard oral argument today in two cases with potential impact for military justice practitioners.  Here are the cases and QPs, from SCOTUSBlog.

The issue in United States v. Wurie is:

 Whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cellphone found on a person who has been lawfully arrested.

The transcript is here.

The issue in Riley v. California is:

 Issue: Whether evidence admitted at petitioner’s trial was obtained in a search of petitioner’s cell phone that violated petitioner’s Fourth Amendment rights.

The transcript is here.

I’m particularly interested in Riley, because of how military law enforcement acts in most cases.  Ask any client whether they were arrested, they will tell you no they were not.  Later when they do a background check they are astounded to find they “were.”  What usually happens is that they were invited, taken, or directed to go meet with [CID, NCIS,OSI, CGIS]; they will tell you that when they got there they were not advised they were free to leave, but that they eventually were told their rights; and finally they will say that before leaving they were swabbed, printed, and photographed.  Those events, as we know, result in the person being “Titled” and the event showing up in NCIC as an arrest.  But is it really an arrest, I have yet to hear a client tell me that the investigator said, “you are under arrest (or apprehension to be terminally correct).”  If it is, then Riley applies.  If it isn’t an arrest, then there can be no search incident, can there?  Forget the bit where the investigator asks to take the phone, and says, “I can get a warrant easily,” when the person balks.

One Response to “In the Supremes”

  1. Phil Cave says: