Challenging Cell Phone Searches Incident to Arrest

Cell phones are now a staple of American life. A 2011 Pew Research Center Report found 83 percent of all American adults have a cell phone¹ and a 2012 report found that 45 percent of those cell phones are Internet-connected “smartphones.”² As cell phones find their way into more pockets and purses, they are becoming a crucial piece of evidence for law enforcement. Most cell phones store a person’s call history and allow its owner to send and receive text messages. Smartphones contain much more data than that, with applications, calendars, emails, photos and other forms of personal data stored on the phone itself. Increasingly, this information is also stored remotely “on the cloud” where it is accessible on multiple electronic devices. Thus, it is no surprise that a cell phone search is fast becoming a routine part of a criminal defendant’s arrest. Notably, many of these searches are occurring without a search warrant. Instead, officers and prosecutors rely on the search incident to arrest exception to the Fourth Amendment’s warrant requirement to search through a cell phone after arrest, regardless of whether there is likely to be evidence of the crime of arrest found on the phone.