Searches of Cell Phones Incident to Arrest: Overview of the Law as It Stands and a New Path Forward

摘要

Most courts to consider the treatment of cell phones seized incident to arrest have applied traditional SIA doctrine to uphold full searches of the phone. Perhaps unsurprisingly, many of these courts have expressed concern about the privacy interests implicated, but noted that, absent guidance from the Supreme Court, they can reach no other decision. Courts that have taken a different tack in an attempt to protect privacy interests have created flawed rules that often rely on strained readings of precedent. However, in the recent Jones case, the Supreme Court articulated two separate sources of Fourth Amendment protection: the common law trespassory test for physical searches and the reasonable expectation of privacy test for informational searches. Courts can fully adhere to SIA precedent and protect the privacy interests in arrestees' cell phones by giving meaning to both sources of protection: using the physical trespass test to determine whether officers may access a seized phone under traditional SIA doctrine, and using the reasonable expectation of privacy test to cabin any resulting searches. As evidenced by application to Wurie and Riley, the rule allows for limited searches of the information an arrestee has already exposed to third parties (like the recently called numbers in Wurie) but precludes officers from sifting through the photographs and videos on an ar-restee's phone (as occurred in Riley). This rule provides a faithful reading of Supreme Court precedent, upholds the privacy interest in an arrestee's cell phone, and permits officers to prevent the destruction of evidence.