Though state and federal courts are divided on the issue, it seems as though warrantless cell phone searches are spreading across the country at an alarming rate.
How is this even legal?
According to courts in California, Florida and Georgia, warrantless cell phone searches are justified under the "search incident to a lawful arrest" exception to the 4th Amendment's warrant requirement.
Because the Supreme Court has not ruled on the issue of warrantless cell phone searches, there is still a lot of confusion amongst courts and civil rights advocates.
For instance, the Ohio Supreme Court has nixed warrantless cell phone searches, but CNN reports that the California Supreme Court has approved them.
The general consensus amongst courts that have approved the searches is that they are permitted as a search incident to a lawful arrest.
This area of law basically says that upon a lawful arrest, police may search a suspect's person, clothing and the area within his immediate reach in order to ensure safety and prevent the destruction of evidence.
The Supreme Court has also permitted the search of containers found in the suspect's immediate reach.
Courts that have permitted warrantless cell phone searches to preserve evidence, since police can seize a suspect's property when booked, and have even equated cell phones to "containers."
Until the Supreme Court takes a definitive stand on the issue, the future of warrantless cell phone searches will remain uncertain. However, if you are worried about your own cell phone privacy, "lock" your cell phone--you can't be compelled to unlock it without a court order.
- License, Registration and iPhone Please (Huffington Post)
- The Fourth Amendment "Reasonableness" Requirement (FindLaw)
- Michigan Cell Phone Fight: Cops Scanning Phones? (FindLaw's Blotter)
- An Unusual SCOTUS Majority Limits Warrantless Car Searches (FindLaw's Courtside)