First Circuit Denies En Banc Review in Cell Phone Search Case, But Two Judges Ask Supreme Court To Step In
Orin Kerr has more on the call for the Supreme Court to tackle the issue of cell phone searches:
Two weeks ago, when DOJ petitioned for rehearing en banc in United States v. Wurie, the Fourth Amendment case on searching cell phones incident to arrest, I wrote that the petition for rehearing was a possible preview of a future DOJ cert petition:
I wouldn’t be surprised if this filing offers us a preview of a future cert petition. The arguments in the petition resemble the kinds of arguments that would be made in a cert petition to the Supreme Court, and en banc review is relatively rare in the 1st Circuit. Plus, Deputy SG Michael Dreeben argued Wurie before the original panel. Filing a petition for rehearing may also be a way of keeping other cases out of the Supreme Court in the short term; the possibility of en banc review arguably keeps Wurie out of the split count. Either way, stay tuned.
Well, the denial of rehearing didn’t take long: Today the First Circuit denied rehearing en banc. Notably, both Chief Judge Lynch and Judge Howard authored separate statements asking the Supreme Court to step in and review the issue.
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