Friday, December 17, 2010

A “Very Cool” Issue -- Cell Phone Searches Incident to Arrest

Professor Kerr recently posted about cell phone searches incident to arrest. His starting point was a Georgia case. You can find my comments on the decision, along with a link to the text of the decision, here.

The issue is, when police arrest someone, can they search the entire contents of a cell phone on the arrestee's person? I have been writing a lot on this issue, and will be publishing an article soon in the Memphis Law Review on the issue. You can find it here.

Professor Kerr refers to this issue as "fascinating" and "very cool" – who knew?

Kerr recognizes that the old doctrine of searches incident to arrest, which applied to wallets, address books, and pagers, may not be applicable to a cell phone. He writes:

Ten years ago, analogizing a cell phone to a wallet made a lot of sense. You could easily take the wallet precedents and just apply them to cell phones. But as cell phones change, it's not so clear that the analogy still works. Smart phones carry a ton of information, the equivalent of a desktop hard drive from a few years ago. And fast-forward to 10 years from now, when it seems quite likely that cell phones (or whatever people are carrying with them by then) will store even more stuff and keep more records than today. What rule applies over time? If the rule needs to change at some point, exactly when should it change? Or is change needed? Right now courts are divided on the question, with some courts drawing the analogy between cell phones and physical storage devices and other courts saying that the storage capacity and records kept on a cell phone makes them substantially different from physical devices.

Kerr suggests that the search is permissible. I tend to agree with the view that information stored on electronic devices should not be subject to the traditional search incident to arrest doctrine.

Here is where Kerr gets the big money. He connects the dots between this issue and the recent Sixth Circuit opinion on emails. Both, he writes, cases suggest that courts are keeping a "very careful eye to ensuring that the analogies work so as to maintain the basic balance of Fourth Amendment protection as technology changes."

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