New article: “The iPhone Meets the Fourth Amendment”; or, search incident of cellphones run amok?

We already see search incident of the contents of cellphones, something that I disagree with, because, once the cellphone is out of the hands of the defendant, there is little that can be done to alter its stored electronic information. Sure, some “early” (pre-2004) phones may have a limited memory for incoming calls (say, 30 numbers), and some later incoming calls may erase the earliest ones in the queue. The police remedy is to turn it off or remove the battery. Then, if there is really probable cause, they can get a search warrant for the contents of the phone. Also, what about a password protected phone? A password protected phone is like a password protected computer, and a search warrant would have to be obtained to get into it. But, case law thus far does not agree with me on access to a cellphone qua cellphone and not small computer.

Technology only expands, and, as it does, cellphones become more like computers, as with the iPhone, Blackberry, and MotoQ, phones that have comparably infinite storage capacity for numbers and text messages and web searching capability. They also have memory cards in an expansion slot for expanding all the memory or downloads, photographs, or anything else the device can do. What about all that information? What about cellphones that are web browsers or small computers? Can a small computer be subject to a search incident? Under the normal rationale, no. But these are not normal times for technology. It is fascinating and scary to consider the ramifications of search incident of the current versions of cellphones.

This is the subject of a forthcoming new article by Prof. Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, available off the SSRN.

The abstract:

Imagine that police arrest an individual for a simple traffic infraction, such as running a stop sign. Under the search incident to arrest doctrine, officers are entitled to search the body of the person they are arresting to ensure that he does not have any weapons or will not destroy any evidence. The search incident to an arrest is automatic and allows officers to open containers on the person, even if there is no probable cause to believe there is anything illegal inside of those containers. What happens, however, when the arrestee is carrying an iPhone in his pocket? May the police search the iPhone’s call history, cell phone contacts, emails, pictures, movies, calendar entries and, perhaps most significantly, the browsing history from recent internet use? Under longstanding Supreme Court precedent decided well before handheld technology was even contemplated, the answer appears to be yes. This article demonstrates how the full contents and multiple applications of iPhones can be searched without a warrant or probable cause under existing Supreme Court precedent. The article also offers approaches courts and legislatures might adopt to ensure greater protection for the soon-to-be pervasive iPhone devices.

[Thanks to Prof. Gershowitz for providing a link to the article. SSRN notes over 1,000 downloads of the article.]