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The iPhone Meets the Fourth Amendment

Adam M. Gershowitz, South Texas College of Law

Abstract

Imagine that Dan Defendant is stopped by the police for driving through a stop sign. The officer thinks that Dan looks suspicious, but has no probable cause to believe he has done anything illegal, other than driving recklessly. Nevertheless, because running a stop sign is an arrestable offense and the officer is suspicious that Dan might be involved in more serious criminal activity, the officer arrests Dan for the traffic violation.

Under the search incident to arrest doctrine, officers are entitled to search the body of the arrestee to ensure that he does not have weapons or will not destroy any evidence. The search incident to arrest is automatic and allows officers to open containers on the person, even if there is no probable cause to believe there is anything illegal inside of those containers. For instance, a standard search incident to arrest often turns up drugs located in a small container such as a cigarette pack. Yet, Dan does not have a cigarette pack in his pocket; instead, like millions of other technophiles, Dan is carrying an iPhone.

The officer removes the iPhone from Dan’s pocket and begins to rummage through Dan’s cell phone contacts, call history, emails, pictures, movies, and, perhaps most significantly, the browsing history from his use of the internet. In addition to finding Dan’s personal financial data and embarrassing personal information, the police also discover incriminating pictures of stolen contraband, emails evidencing drug transactions, and internet surfing of websites containing child pornography. Is all of this evidence admissible even though Dan has only been arrested for a traffic infraction and there was no probable cause (not to mention no warrant) to search the contents of his iPhone? When one considers the breadth of information located in Dan’s iPhone, it would seem shocking that officers need no suspicion whatsoever in order to search through that information. Yet, that conclusion appears to follow from longstanding Supreme Court precedent laid down well before handheld technology was even contemplated.

This article demonstrates how the full contents and multiple applications of iPhones can be searched without a warrant or probable cause under existing Supreme Court precedent. The article also offers approaches courts and legislatures might adopt to ensure greater protection for the soon-to-be pervasive iPhone devices.

Suggested Citation

Adam M. Gershowitz. 2008. "The iPhone Meets the Fourth Amendment" ExpressO
Available at: http://works.bepress.com/adam_gershowitz/3

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