Can Smartphones Be Searched Incident to Arrest?

-Submitted by David Drumm (Nal), Guest Blogger

In the 1969 case Chimel v. California, the Supreme Court, in a 7-2 decision, held that an “arresting officer may search the arrestee’s person to discover and remove weapons and to seize evidence to prevent its concealment or destruction.” The search also included “the area “within the immediate control” of the person arrested, meaning the area from which he might gain possession of a weapon or destructible evidence.” This case created the Chimel rule allowing warrantless searches incident to a lawful arrest.

In United States v. Robinson (1973), the Supreme Court held that an officer’s discovery of a crumpled cigarette package containing 14 gelatin capsules of heroin, did not violate the defendant’s Fourth Amendment rights. In New York v. Belton (1981), the Supreme Court held that police “may also examine the contents of any containers found in the passenger compartment.” The container may be open or closed.

Courts have additionally permitted searches of locked containers, such as briefcases found on or near the arrestee. Permissible searches include the content of papers, notes in a wallet, and address books. Federal courts have allowed police to recover telephone numbers from the memory of pagers, arguing that these electronic devices are similar to address books.

Relying on the container cases, courts have allowed the contents of cell phones to be searched incident to the defendant’s arrest. That search could reveal personal e-mails, embarrassing private photos, incriminating evidence, or confidential business information. That is why police want that data, to use it to turn a routine traffic stop into a more prestigious felony case.

Police have the authority to arrest anyone for even the most innocuous traffic infractions. Consider what happened to Gail Atwater. She was pulled over for not wearing her seat belt. The officer, after verbally abusing her, handcuffed her, arrested her, and impounded and searched her vehicle. All for a $50 fine. In Atwater v. Lago Vista (2001), the Supreme Court held that her arrest for a misdemeanor seatbelt violation did not violate the Fourth Amendment.

An officer, lacking any basis for believing you’ve committed a crime, can follow your vehicle until you inevitably violate some minor traffic law, pull you over and arrest you. Then proceed to search you, your vehicle, and your smartphone.

H/T: Joshua Engel, PrawfsBlawg (Caleb Mason), CATO.

21 thoughts on “Can Smartphones Be Searched Incident to Arrest?”

  1. Just noticed this post. The courts remain divided on this issue a year later. I receently wrote on this in Law Technology Now and the EDD Update blog. New citations are available for those interested.

    You can read my thoughts on searches of cell phones in more detail in : this law review article, “Doctrinal Collapse: Smart Phones Cause Courts to Reconsider Fourth Amendment Searches of Electronic Devices, University of Memphis Law Review, Vol. 41, p. 233 (2010).

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