The New World of Mobile Communication: Redefining the Scope of Warrantless Cell Phone Searches Incident to Arrest

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Samuel J. H. Beutler · 15 Vand. J. Ent. & Tech. L. 375

Abstract

In many jurisdictions, law enforcement officials may conduct a warrantless search of the contents of an arrestee’s cell phone incident to an arrest. The judicial precedent for this policy dates back to the early 1990s when courts equated early mobile technology, such as pagers and first generation cell phones, to physical containers capable of storing a limited number of calls or messages. Supreme Court precedent had long permitted the warrantless search of such containers incident to arrest. However, due to advancements in technology, mobile devices, such as smart phones, now have the capacity to hold a larger amount of personal information, including text messages, diaries, pictures, videos, financial information, and medical records. Because this information may increase an arrestee’s expectation of privacy in the contents of a cell phone, an analogy to a finite physical container may no longer be appropriate. In recognition of this change, two courts now require law enforcement officials to have a warrant to search the contents of an arrestee’s cell phone incident to arrest.

This Note surveys how courts have dealt with changing mobile technology in the context of a search incident to arrest and analyzes the jurisdictional split. It also addresses the expectations of privacy in today’s mobile technology and suggests that courts use a function-based approach when determining what information stored in a mobile device may be viewed without a warrant and what information necessarily requires a warrant.