Calling for a Standard: Why Courts Should Apply a New Balancing Test in Cell Phone Searches Incident to Arrest
Liming, Drew, American Criminal Law Review
You have just been stopped for driving with a revoked license. A police officer asks that you step out of your car and hand over your cell phone. When you comply, the officer scrolls through your personal information. First she looks at your recently called numbers. Then she accesses the names and phone numbers of your contacts. Finally, she begins browsing through your photographs.
The officer's search of your cell phone likely seems excessive because the cell phone has nothing to do with the validity of your license. However, such an intrusion would frequently be permitted under the search incident to arrest exception to the warrant requirement of the Fourth Amendment. (1)
But now consider a different scenario: officers arrest a major drug kingpin after witnessing the kingpin using his cell phone to show photos, which the officers suspect depicted drugs, to an associate. When arresting the kingpin, officers seize but do not search his cell phone. By the time they procure a warrant to search the phone, the officers find that it has been reset to factory settings; they suspect that another associate of the arrestee remotely erased the phone's hard drive. The suspected drug photos, which would have served as key evidence against the kingpin at trial, are lost. In this case, allowing officers to search the cell phone at the time of the arrest might have been an effective policy.
These different scenarios demonstrate that what could seem excessive in some circumstances might seem necessary in others. This calculation will continue to change as technology develops and more information is stored on or accessed through cell phones. As the scenarios indicate, deciding whether a particular cell phone should be searchable incident to arrest turns on the reasonableness of an officer's search and the arrestee's expectation of privacy in the information stored on the phone.
Courts have struggled to apply the search incident to arrest exception to cell phone searches. Many Circuits have allowed law enforcement officers to search cell phones incident to arrest if the searches were conducted at or shortly after the time of arrest and the arrestee's phone was on his person. (2) However, other jurisdictions have held that cell phones cannot be searched without a warrant. (3) As cell phone searches are now a common investigatory tool, the U.S. Department of Justice has asked the Supreme Court to resolve this Circuit split and provide clear guidance to courts and law enforcement about when such searches are permitted. (4) In the wake of the Circuit split, this Note will argue that the Supreme Court should adopt a balancing test because cell phone technology develops too swiftly to be governed by a bright-line rule. Only a balancing test properly accommodates both the relevant privacy concerns and the needs of law enforcement.
Part I of this Note provides background on the search incident to arrest exception to the Fourth Amendment. Part II analyzes the history of cell phone searches and many of the rationales courts have used in permitting or prohibiting warrantless searches of cell phones incident to arrest. Part III suggests how the Supreme Court should resolve the issue of warrantless cell phone searches and explains why a balancing test would be the best option for a rapidly developing technology like cell phones.
I. HISTORY OF THE SEARCH INCIDENT TO ARREST EXCEPTION
The Fourth Amendment protects the right to be secure "against unreasonable searches and seizures." (5) In most situations, law enforcement officers must either procure a warrant or demonstrate probable cause sufficient to attain a warrant before proceeding with a search or seizure. However, there are a number of exceptions to the warrant requirement. (6)
One prominent exception pertains to searches incident to arrest, which were first mentioned by the Court in dictum in 1914. (7) In Weeks v. United States, the Court indicated that English and American law had always recognized the ability of police officers to search the person of a legally arrested suspect. …