Tuesday, January 22, 2008
From SSRN.com: South Texas College of Law CrimProf Adam M. Gershowitz recently published The IPhone Meets the Fourth Amendment. Here is the Abstract: Imagine that police arrest an individual
for a simple traffic infraction, such as running a stop sign. Under the
search incident to arrest doctrine, officers are entitled to search the
body of the person they are arresting to ensure that he does not have
any weapons or will not destroy any evidence.
The search incident to an arrest is automatic and allows officers to open containers on the person, even if there is no probable cause to believe there is anything illegal inside of those containers. What happens, however, when the arrestee is carrying an iPhone in his pocket? May the police search the iPhone's call history, cell phone contacts, emails, pictures, movies, calendar entries and, perhaps most significantly, the browsing history from recent internet use? Under longstanding Supreme Court precedent decided well before handheld technology was even contemplated, the answer appears to be yes.
This article demonstrates how the full contents and multiple applications of iPhones can be searched without a warrant or probable cause under existing Supreme Court precedent. The article also offers approaches courts and legislatures might adopt to ensure greater protection for the soon-to-be pervasive iPhone devices. [Mark Godsey]