Friday, July 13, 2012
Margaret M. Lawton (Charleston School of Law) has posted Warrantless Searches and Smart Phones: Privacy in the Palm of Your Hand? (The University of the District of Columbia Law Review (Forthcoming 2012)) on SSRN. Here is the abstract:
While the United States Supreme Court has not yet had occasion to address the warrantless search of a cell phone or smartphone incident to arrest, the vast majority of courts, both state and federal, to have considered the issue have allowed warrantless searches of cell phones pursuant to this exception, reasoning that cell phones are containers like any other found on an arrestee. The few courts to consider a warrantless search of a smartphone in similar circumstances have also allowed these searches.
I do not disagree with concerns that warrantless searches of these devices incident to arrest could expose potentially large amounts of personal information to the police without the prior approval of a neutral and detached magistrate. However, I question whether the advancement of technology in this area requires an expansion or reformation of the search incident to arrest exception to the warrant requirement. The Supreme Court has determined that the Fourth Amendment, at its core, imposes a reasonableness standard, and that standard has been applied in a variety of warrantless settings. Regarding the search incident to arrest doctrine specifically, the Court has held that “in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” As discussed in the article, most of the lower courts to consider the issue have found that the storage capacity of a cell phone or smartphone does not change the Fourth Amendment analysis. Moreover, the Supreme Court has rejected any distinction between “worthy and unworthy containers” and instead “has defined the term ‘container’ much more expansively.” Perhaps then, the question is not as complicated as it appears: Existing Fourth Amendment doctrine arguably reaches the proper balance between privacy rights and law enforcement needs in this area.