Should Police be able to Search an Arrestee’s Cell Phone?

The Fourth Amendment guarantees the right to be secure in our persons and possessions by protecting citizens from unreasonable searches and seizures. As even a casual moviegoer knows, when you are arrested you have certain rights. However, these constitutional rights must now be balanced against legitimate law enforcement interests of protecting officers and seizing destructible evidence.

Steve Jobs predicted that cell phones, and specifically the iPhone would change everything. Right now, courts are struggling to apply old search and seizure rules to these new devices resulting in a deep division of authority. The U.S. Supreme Court has accepted certiorari on two cases where they will take up this question and hopefully find a way to maintain the balance between privacy and law enforcement interests.

Paradigm shifting technology requires new legal rules. We have seen this before in the incident to arrest context with the automobile and we’ll likely see it again within our lifetimes. I suggest that the way we can stay true to the timeless principles of the Fourth Amendment is by looking at all digital devices, not as a means of containing data, but a means of accessing it.

The introduction to my article follows, full article is available on SSRN.

Today, January 17, 2014, the United States Supreme Court granted certiorari in Reily v. California[1] and United States v. Wurie[2] to resolve the deepening division of authority on how the incident to arrest exception should be applied in the context of cell phones.[3] Some courts have analogized cell phones to their low-tech predecessors like address books and diaries,[4] others have refused to uphold searches because cell phones contain a veritable warehouse of a person’s most private information.[5] But either alternative ultimately fails to adequately consider the changing forms that these devices are taking. Rather than forcing cell phones into the existing incident to arrest framework, this paper argues that a new category of “containers” that will be durable in the face of continuing innovation is needed.

In his 2007 keynote speech, Steve Jobs announced the iPhone by saying, “[e]very once in a while, a revolutionary product comes along that changes everything.”[6] Undoubtedly, cell phones have had a significant impact on the way we interact with each other personally as well as the way we do business.[7] Throughout history, certain devices and discoveries have changed the way we interact with the world and each other so fundamentally that they force us to reassess the rules that govern those interactions and the definitions we use to describe them. Thomas Kuhn called this phenomenon a “paradigm shift.”[8] Having experienced a paradigm shift with the advent of mobile technology, and with wearable technology just on the horizon, we are coming to recognize that some legal doctrines need to be rewritten in order to preserve timeless legal principles.

According to Kuhn, a true paradigm shift is always accompanied by new practices that are incompatible with the old way of seeing the world, which requires a reformulation of the rules that govern those practices and the terminology that describes them.[9] Problems arising from incompatibility between the old paradigm and the new cannot be resolved “a step at a time, forced by logic and neutral experience.”[10] [A shift] must occur all at once (though not necessarily in an instant) or not at all.”[11] Therefore, simply placing cell phones within the existing incident to arrest framework will ultimately fail because they represent a new paradigm that is completely incompatible with the old paradigm. This paper argues that the way to successfully shift our incident to arrest jurisprudence to the new paradigm is by moving away from looking at digital devices through the lens of the old paradigm as a container for data, toward looking at them principally as a means of accessing data.

Section II reviews the history of the exception and survey sources of controversy in applying the incident to arrest exception to cell phones that have arisen because earlier courts failed to distinguish low-tech data containers from containers of physical objects and lays out the two predominant approaches that have arisen among the courts that have ruled on this issue. Section III makes the argument that the Supreme Court should hand down a ruling that will exclude cell phones from the incident to arrest exception, but also provide a classification for these kinds of devices that will remain valid as consumer technology continues to develop.


[1] No. 13-132, 2014 U.S. LEXIS 648 (Jan. 17, 2014).

[2] No. 13-212, 2014 U.S. LEXIS 650 (Jan. 17, 2014).

[3] Infra Part II.E.

[4] See, e.g., United States v. Flores Lopez, 670 F.3d 803 (7th Cir. 2012).

[5] See, e.g., United States v. Wurie, 728 F.3d 1 (1st Cir. 2013), reh’g en banc denied, 724 F.3d 255 (1st Cir. 2013).

[6] Steve Jobs, Keynote Address at 2007 Macworld in San Francisco (Jan. 9 2007) available at http://www.iphonebuzz.com/complete-transcript-of-steve-jobs-macworld-conference-and-expo-january-9-2007-23447.php.

[7] Apple iPhone=Paradigm Shift in the Mobile Industry, Wireless Federation, (July 9, 2007), http://www.wirelessfederation.com/news/8320-apple-iphoneparadigm-shift-in-the-mobile-industry/; See Philippe Kahn, Photography Changes the way we Communicate, click.si.edu/Story.aspx?story=159 (last visited Oct. 26, 2013) (Describing how the ability to share pictures changed personal communication); Kumiko Aoki & Edward J. Downes, An Analysis of Young People’s use of and Attitudes Toward Cell Phones, 20 Telematics and Informatics 349–364, available at http://www.sciencedirect.com/science/article/pii/S0736585303000182 (describing statistically the effect cell phones have had on the behaviors of young people); See Michael Bittman, The Mobile Phone, Perpetual Contact and Time Pressure, 23 Work, Employment & Society 673 (describing the process of “work intensification” resulting from frequent use of cell phones).

[8] Thomas S. Kuhn, The Structure  of Scientific Revolutions 10 (2nd ed. 1970).

[9] See Kuhn, supra note 9 at 92–93 (“Astronomers, for example, could accept X-rays as a mere addition to knowledge, for their paradigms were unaffected by the existence of the new radiation. But for men like Kelvin, Crookes, and Roentgen, whose research dealt with radiation theory or with cathode ray tubes, the emergence of X-rays necessarily violated one paradigm as it created another.”).

[10] Kuhn, supra note 9 at 150.

[11] Id.

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