           United States Court of Appeals
                      For the First Circuit
                  ______________________________


No. 11-1792
                           UNITED STATES

                             Appellee

                                v.

                            BRIMA WURIE

                       Defendant - Appellant
                  _______________________________

                              Before

                        Lynch, Chief Judge,
                 Torruella, Stahl, Lipez, Howard,
                       Thompson and Kayatta,
                          Circuit Judges.
                    ___________________________

                           ORDER OF COURT
                      Entered: July 29, 2013

           Pursuant to First Circuit Internal Operating Procedure

X(C),   the petition for rehearing en banc has also been treated

as a petition for rehearing before the original panel.   The

petition for rehearing having been denied by the panel of judges

who decided the case, and the petition for rehearing en banc

having been submitted to the active judges of this court and a

majority of the judges not having voted that the case be heard en

banc, it is ordered that the petition for rehearing and petition

for rehearing en banc be denied.


                                -1-
             LYNCH, Chief Judge, statement on denial of rehearing en

banc.      I vote to deny rehearing en banc not because the case

does not meet the criteria for en banc review.    It clearly does.

Indeed, the issues are very important and very complex.

             I vote to deny rehearing en banc because I think the

preferable course is to speed this case to the Supreme Court for

its consideration.    There are two very able opinions from this

court, and en banc review in this Court could not improve on

their presentations of the issues.

             The decision in this case creates a circuit split with

respect to the validity of warrantless searches of cell phones

incident to arrest.    State courts similarly are divided.   As the

government points out, the differing standards which the courts

have developed provide confusing and often contradictory guidance

to law enforcement.    Indeed, the highest court in the state which

this case arose has taken a view of the law that is contrary to

the decision in this case, leaving the police in need of further

guidance.

             Only the Supreme Court can finally resolve these

issues, and I hope it will.

             HOWARD, Circuit Judge, statement on denial of rehearing

en banc.     My view of this case has not changed since I dissented

from the majority opinion.    If anything, my dissent looks better

in light of the Supreme Court's recent opinion in Maryland v.


                                  -2-
King, 133 S. Ct. 1958 (2013), in which the Court held as

constitutional Maryland's practice of swabbing violent-crime

arrestees for DNA samples.   The majority opinion, relying on the

exact same language that I quoted in dissent, reaffirmed the core

holding in United States v. Robinson, 414 U.S. 218 (1973) -- that

the search of a person and items in his immediate control

incident to an arrest requires no independent justification other

than the arrest itself.   King, 133 S. Ct. at 1971-72.   Indeed,

the dissent in King, while taking a more restrictive view of

searches incident to arrest, still articulated a rule that likely

would have permitted the search of Wurie's cell phone as a search

for evidence of the crime he committed.   Id. at 1982 (Scalia, J.,

dissenting) ("The objects of a search incident to arrest must be

either (1) weapons or evidence that might easily be destroyed, or

(2) evidence relevant to the crime of arrest.").   This only

strengthens my belief that the majority's rule is the only rule

under which the search of Wurie's cell phone was

unconstitutional.   But that rule is simply without precedent.

           For prudential reasons, however, I believe en banc

rehearing is unnecessary.    Ultimately this issue requires an

authoritative answer from the Supreme Court, and our intermediate

review would do little to mend the growing split among lower

courts.   Both the Florida Supreme Court and the Ohio Supreme

Court have adopted a warrant requirement similar to the one the


                                 -3-
majority found necessary in this case.   See Smallwood v. State,

113 So. 3d 724 (Fla. 2013); State v. Smith, 920 N.E.2d 949 (Ohio

2009).   Leaving aside these outliers (and make no mistake, we are

now an outlier in this field), those courts in agreement on this

issue have often reached the same conclusions relying on

different reasoning.   Compare United States v. Flores-Lopez, 670

F.3d 803, 809-10 (7th Cir. 2012) (looking at risk to officer

safety and preservation of evidence), and United States v.

Finley, 477 F.3d 250, 259-60 (5th Cir. 2007) (analyzing the issue

as a matter of searching for evidence of the crime of arrest).

Clearly, cell phones sit at the intersection of several different

Fourth Amendment doctrines, and I suspect that each new case will

result in a slightly different interpretation of how to treat

these searches.   Given this likely outcome, I welcome speedy

resolution from the Supreme Court, and see no need to delay by

reconsidering this case.

                                 By the Court:

                                 /s/ Margaret Carter, Clerk.




cc:
Dina Chaitowitz
Michael Dreeben
Kelly Lawrence
John Wortmann, Jr.
Ian Gold


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