Calling for a standard: why courts should apply a new balancing test in cell phone searches incident to arrest.

AuthorLiming, Drew

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.


    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. (8)

    The Supreme Court clarified the search incident to arrest doctrine in Chimel v. California (9) In Chimel, officers asked a burglary suspect for permission to search his house when they served him with an arrest warrant. (10) Although the suspect denied their request, the officers proceeded to search his entire house, including the attic and garage, and found evidence of burglary." After the trial court admitted the evidence and its decision was affirmed by the California Supreme Court, the suspect appealed to the United States Supreme Court, claiming the search violated his Fourth Amendment rights. (12)

    The Supreme Court held that the officers had no justification for searching the suspect's house absent a warrant. (13) However, the Court also indicated that it was reasonable for police officers, upon making an arrest, to conduct a warrantless search of an arrestee's person and the area "within his immediate control." (14) Such searches were justified in order to prevent the arrestee from destroying evidence or to discover if the arrestee had any weapons that could threaten the safety of the arresting officers. (15)

    The Court expanded the search incident to arrest exception in United States v. Robinson. (16) In Robinson, officers arrested the suspect for driving a car with a revoked license. (17) When the officer conducted a search incident to arrest, he pulled a crumpled cigarette package out of the suspect's coat pocket. (18) The officer opened the package and found capsules of what he believed--and later confirmed--to be heroin. (19) When the suspect challenged the admission of the heroin into evidence at his trial, the Court ruled that warrantless search or seizure of objects on the person of an arrested suspect is reasonable under the Fourth Amendment. (20) The Court stated that the long history of searches incident to arrest indicted that this practice does not require "such a case-by-case adjudication," and that after a lawful arrest, a search incident to arrest that examines the suspect's person "requires no additional justification." (21) In Robinson, the Court established a bright-line rule that officers may seize and search any item or container--open or closed--on the person of the arrested suspect when conducting a search incident to arrest. (22)

    After Robinson, the courts slowly expanded the search incident to arrest doctrine and created bright-line rules permitting searches in areas other than on an arrested suspect's person, such as inside the passenger compartment of automobiles. (23) Police officers have frequently used the expanding search incident to arrest exception in investigations and arrests. (24)

    However, use of the search incident to arrest exception changed dramatically in 2009 after the Supreme Court's decision in Arizona v. Gant. (25) In Gant, police arrested a suspect for driving with a suspended license. (26) After officers restrained Gant and put him in the back of a patrol car, they searched his car's back seat, where they found a bag of cocaine in the pocket of a jacket. (27) When Gant argued that this evidence should be suppressed because the search violated his Fourth Amendment rights, the Court agreed with the Arizona Supreme Court that the officers could not justify their search under either of the Chimel rationales permitting searches incident to arrest. (28) Because the officers had already locked Gant in their patrol car when the search took place, they had no reason to suspect that there was a risk of evidence being destroyed or a threat to their safety. (29) The Court explained that officers "may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest." (30) Barring these circumstances, officers need a warrant or another exception to the warrant requirement to search an arrestee's vehicle. (31)

    Since Gant was decided, however, lower courts have differed on how to apply the new search incident to arrest rule. (32) Some have limited the holding of Gant to searches incident to arrest involving vehicles. (33) Other courts have read Gant as a reaffirmation of the Chimel rationales and have held that all searches incident to arrest should be subject to the same requirements. (34) Reconciling Chimel, Robinson, and Gant and applying them to searches incident to arrest of highly sophisticated smartphones has resulted in courts reaching wildly different conclusions as to whether the Fourth Amendment permits warrantless searches of cell phones.


    Many courts that have considered searches of cell phones incident to arrest have held that the searches did not violate the Fourth Amendment when the phone was on the arrestee's person at the time of arrest. (35) However, in several cases, courts have held that police officers violated arrestees' Fourth Amendment rights by searching cell phones without a warrant. (36) And recently, in United States v. Wurie, the First Circuit established a bright-line rule that searches of cell phones never fall within the search incident to arrest exception to the warrant requirement. (37) In light of the difficulty of applying existing legal principles to new technologies, courts have considered a variety of arguments when deciding if a cell phone search was legitimate: (A) whether cell phone searches are permitted under the Chintel rationales; (B) whether cell phones are analogous to containers found on an arrestee's person; (C) whether cell phones are analogous to pagers; (D) whether the quantity and personal nature of information stored on cell phones creates a heightened expectation of privacy that requires unique analysis; and (E) whether Gant applies to searches of cell...

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