The Supreme Court ruled in Riley v. California that cell phones can’t be searched incident to arrest. Jessie explained in yesterday’s post that Riley applies to cases that were pending when it was decided. Does that mean that the results of all the cell phone searches incident to arrest conducted before Riley was decided must be suppressed? Maybe not, as I explain below. Round 1: the State argues the good faith exception. The State’s first move will be to argue that such searches were conducted in good faith reliance on existing precedent, namely State v. Wilkerson, 363 N.C. 382 (2009) (ruling briefly that “in the case at bar, the seizure and the search of the telephone were properly accomplished pursuant to a lawful arrest”). The Supreme Court has ruled that “searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” Davis v. United States, __ U.S. __, 131 S.Ct. 2419 (2011). Round 2: the defense argues Carter and the state constitution. The defense response will be to argue (1) that the state constitution protects citizens from unreasonable searches and seizures to at least the same extent as the Fourth Amendment, State v. Garner, 331 N.C. 491 (1992) (stating that the two constitutions protect the “same fundamental right to be free from unreasonable searches and seizures”); State v. Gwyn, 103 N.C. App. 369 (1991) (“North Carolina’s law of search and seizure and the requirements of the Fourth Amendment to the Constitution of the United States [...]
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