KS follows majority rule that search incident includes text messages on a cell phone removed from the person

Search incident includes text messages on a cell phone removed from the person, following the majority. State v. James, 48 Kan. App. 2d 310, 288 P.3d 504 (2012):

Furthermore, our review of opinions from various jurisdictions reveals that the weight of authority applies Robinson to cases involving the search of a cell phone—including the viewing of text messages—seized from an arrestee incident to arrest. See United States v. Murphy, 552 F.3d 405, 411 (4th Cir. 2009) (Law enforcement officers may search “text messages and other information from cell phones and pagers seized incident to an arrest.”); Silvan v. Briggs, 309 F. App’x 216, 225 (10th Cir. 2009) (“[T]he permissible scope of a search incident to arrest includes the contents of a cell phone found on the arrestee’s person.”); Finley, 477 F.3d at 259-60 (A law enforcement officer was “permitted to search [the defendant’s] cell phone pursuant to his arrest.”); … See generally Validity of Search of Wireless Communication Devices, 62 A.L.R. 6th 161, § 6.

We recognize that there are jurisdictions that have found searches of cell phones incident to arrest to be illegal. … See generally Annot., 62 A.L.R. 6th 161, § 7. But we note that in the relatively few cases that have determined a cell phone search incident to arrest to be unreasonable, often the basis for this conclusion was not specific to cell phones. For example, there was no probable cause for arrest in the first place, the search of the cell phone was not contemporaneous to the arrest, or it was unlikely that the cell phone would contain any evidence of the crime. See, e.g. …

Here, James relies primarily on State v. Smith, 124 Ohio St. 3d 163, 170, 920 N.E.2d 949 (2009). In Smith, a divided Ohio Supreme Court held that a warrant was necessary to search a defendant’s cell phone because a cell phone is not a container “capable of holding other physical objects.” 124 Ohio St. 3d at 167. We do not necessarily agree with the premise that the information kept on a cell phone should be treated differently than information written on a piece of paper found on an arrestee’s person. We also find Smith to be significantly distinguishable from the present case because—unlike the present case—the law enforcement officers completed at least a portion of the search of the cell phone after they had returned to the police station and were booking items seized at the crime scene into evidence. 124 Ohio St. 3d at 164.