Journal of Information & Privacy Law

Cell Phones and the Fourth Amendment – Is a Search Warrant Needed if the Arrest is Valid?

By Jocelyn Watkins, Production Editor on Wednesday, April 30th, 2014
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Searching the data in a cell phone, without a warrant, as a search incident to arrest, does not violate the Fourth Amendment of the United States Constitution. The Fourth Amendment guarantees: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures; shall not be violated and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be search, and the persons or things to be seized.” U.S. Const. Amend. IV. While searches conducted without a warrant are per se unreasonable, the Supreme Court has made it clear that there are exceptions to the warrant requirement. See State v. Smith, 920 N.E.2d 949, 952 (Oh. 2009).  One such exception to the Fourth Amendment warrant requirement is the search incident to lawful arrest.   United States v. Robinson, 414 U.S. 218, 235 (1973).  In fact, the Court has held that in the case of a lawful arrest, “a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but also a ‘reasonable’ search under that Amendment.”  Id. Specifically, officers are allowed to search an arrestee’s person and the area of immediate control based on the heavily weighted interests of officer safety and evidence preservation.  Arizona v. Gant, 556 U.S. 332, 343 (2009).

So far, like it or not, this makes sense. But how does a warrantless search incident to a valid arrest influence cell phone owners? Currently, the Supreme Court has not decided the search of cell phones incident to a valid arrest; there is a circuit split as to the constitutionality of searching a cell phone, without first procuring a warrant, as a search incident to a valid arrest.  In analyzing searches of cell phones incident to arrest, some lower courts have treated cell phones as containers under the Supreme Court’s United States v. Robinson and New York v. Belton decisions. United States v. Robinson, 414 U.S. 218 (1973); New York v. Belton 453 U.S. 454 (1981); see e.g., United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007).  Containers are objects that contain other objects. A cell phone is analogous to a photo album that contains personal photographs of the arrestee.

Other lower courts have analogized cell phones to personal effects such as purses, wallets, and address books; therefore, cell phones can be searched without a warrant, incident to a lawful arrest.  United States v. McCray, 2009 WL 29607 (S.D. Ga. Jan. 5, 2009).  Cell phones are similar to other personal effects that have traditionally been searched without a warrant. Purses, wallets, and address books contain personal information that may be pertinent to the crime. In addition to being similar in size, cell phones contain the same material and operate the same as purses, wallets, and address books.  Finally, some lower courts have reasoned that law enforcement may search cell phones incident to arrest in order to preserve evidence commensurate with one of the rationales for the search incident to arrest exception articulated in the Supreme Court’s Chimel v. California, 395 U.S. 752 (1969), decision.  See, e.g., United States v. Murphy, 552 F.3d 405, 411-12 (4th Cir. 2009).  Technological advances enable arrestees to destroy evidence on electronic devices remotely. Police officers must be able to act quickly to preserve evidence in ad hoc situations.

Regardless of the rationale taken, cell phone users beware. The path very clearly leads to the conclusion that searching a phone incident to a valid arrest is constitutional and cell phone owners are in for a rude awakening.

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