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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