Friday, January 7, 2011

New Cell Phone Search Cases Raises Problem of Destroying Data

The Fourth Amendment Blog has a link to an interesting cell phone search case from a federal court in Georgia.

The court held that the contents of a phone could be searched incident to arrest. This follows California and not Ohio.

The court also suggested that "exigent circumstances" could justify a warrantless search of a cell phone. The case involved an iPhone, and the court said that there was "a sufficient basis . . . . to conclude that there was a risk that the phone could be remotely locked, or that the data on the phone could be remotely deleted, thus implicating the need to preserve evidence."

Whether or not this is true – and photos, messages, etc . . . are now likely to be backed up on another computer or in the cloud – this reasoning opens up a big exception for the police. Previously, the focus has been on phones seized during an arrest. However, exigent circumstances exist regardless of whether there has been an arrest – and in theory could be used to justify the seizure of a cell phone from a person even when there is no probable cause for an arrest.

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