The iPhone Meets the Fourth Amendment

background image writes "According to Alan M Gershowitz, the doctrine of "search incident to arrest" may allow devices such as mobile phones, PDAs and laptops to be thoroughly searched without either probable cause or warrants [PDF download below abstract]. Incriminating evidence found in such searches may be used against you whether or not it is germane to the reason for the original arrest. He notes, 'Obviously, the framers of the Fourth Amendment could not have conceived of a handheld technological device like the iPhone, and courts have not yet been called upon to answer most of the difficult questions posed by such devices.' We've discussed similar search issues recently, as well as other privacy concerns related to modern technology.

Comments

Re:The Fourth

[crankyspice]

Lock your phone people and then provide the code when a warrant is given. Nothing is in plain view and therefore not subject to search without *consent* or *warrant*.

The fourth only protects against 'unreasonable' searches without a warrant. A search incident to a lawful arrest has been, for almost a century, been (per SCOTUS interpretation) reasonable, and requires no warrant nor consent. Weeks v. United States, 232 U.S. 383, 392 (1914): "the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases."

Or, "The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted." Agnello v. United States, 269 U.S. 20, 30 (1925)

United States v. Robinson, 414 U.S. 218. 235 (1973): A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a `reasonable' search under that Amendment."

This is pretty old stuff, every first-year law student gets this in Constitutional Criminal Procedure. I'm not aware of any SCOTUS case law directly on point, but lower courts have been applying SILA ("Search Incident to a Lawful Arrest") to electronic devices for decades, e.g., United States v. Lynch, 908 F.Supp. 284, 287 (D.V.I. 1995): "the search and retrieval of the telephone numbers from [the defendant's] pager was justified as being incident to a valid arrest, even though [the defendant] had a reasonable expectation of privacy in the contents of the pager." (Cited with approval in U.S. v. BROOKES, Crim. No. 2004-0154 (V.I. 2005).) Cellphones and pagers have been held to be akin to wallets and address books which, if on a suspect's person or within the sphere of his immediate control at the time of arrest, are fair game.

So, not exactly sure how this is news; it's certainly nothing new.