Marty Koresawa


Since their development in the 1980s, cell phones have become ubiquitous in modern society. Today, cell phones feature large data-storage capacities and can access various types of personal media, making them pocket-sized windows into intimate aspects of an individual’s life. Yet many courts treat cell phones as if they were ordinary physical containers, allowing police officers to search the contents of an arrestee’s cell phone incident to an arrest. The warrantless search of electronic devices incident to an arrest, however, cannot be justified on the same grounds as a similar search of physical containers. The government does not have a strong interest in searching a cell phone incident to an arrest because the search is exceedingly unlikely to reveal a concealed weapon or prevent the destruction of evidence. Moreover, given the personal nature of cell phones, individuals have a much greater expectation of privacy in their cell phones than they do in physical containers stored on their persons. This Note argues that search of a cell phone incident to arrest should no longer be blindly governed by the same precedent that controls other searches incident to arrest, and it urges the Supreme Court to engage in a fresh and thoughtful balancing of the interests at stake. Only by creating new doctrine can the Supreme Court adequately protect these important interests and restore fidelity to the Fourth Amendment principles that should govern searches incident to arrest.

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