Tuesday, February 1, 2011

Court Declines to Address "Difficult" Issue of Cell Phone Searches

A Court of Appeals punted on the question of whether the police may search the contents of a cell phone when a person is arrested.  The unpublished opinion is here.
The Eleventh Circuit was reviewing the conviction of a man for multiple drug charges.  When he was arrested, the police search his cell phone and found the names of others in the drug conspiracy on his contacts list.  However, the court held that even if the defendant’s constitutional rights were violated, the use of this information was “harmless error” because “there was overwhelming evidence of [the defendant’s] guilt.”
This is an important issue in the intersection of the Fourth Amendment and Technology.  Some – not me – have even gone so far as to call this a “very cool” issue.  I have been writing a lot on this issue, and you can find a law review article on the topic here.  That is why I am disappointed the court said:
Whether the warrantless search of a cell phone incident to arrest violates a person's Fourth Amendment expectation of privacy is an unanswered question in this Circuit. It is a fairly difficult question, however, it is also a question that we need not answer today.

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