Seizing a Cell Phone Incident to Arrest: Data Extraction Devices, Faraday Bags, or Aluminum Foil as a Solution to the Warrantless Cell Phone Search Problem
![handle is hein.journals/wmbrts22 and id is 613 raw text is: SEIZING A CELL PHONE INCIDENT TO ARREST: DATA
EXTRACTION DEVICES, FARADAY BAGS, OR ALUMINUM
FOIL AS A SOLUTION TO THE WARRANTLESS CELL PHONE
SEARCH PROBLEM
Adam M. Gershowitz*
When police conduct a lawful custodial arrest, can they search the cell phone in
your pocket? Numerous courts have reached conflicting conclusions on this question.
This Article argues that police should only be permitted to seize cell phones incident
to arrest. If the police are concerned about data being remotely wiped from the phone
while they wait for a search warrant, the officers should preserve the data by using
either a data extraction device to copy the phone's contents, an inexpensive bag called
a Faraday cage to prevent remote wiping of the cell phone, or a simple sheet of alumi-
num foil to immobilize the phone.
Under the search incident to arrest doctrine, police have long been permitted to
open any item on an arrestee, whether they have probable cause for that particular item
or not.' The rationale is that arrestees could try to destroy evidence or use hidden ob-
jects to harm officers.2 And because police conduct millions of searches per year,3 the
Supreme Court has established a bright-line rule.4 Decades ofprecedent therefore seem
to indicate that police can search through the full contents of any item on an arrestee,
including electronics.'
But surely cell phones must be different. After all, while wallets hold business cards
and a few scraps of paper, cell phones contain thousands of pictures, emails, Facebook
information, Internet browsing history, and map locations-and that is just the informa-
tion accessible from the first screen of the device. If the police can search your cell
* Professor of Law, William & Mary Law School. I am grateful to Jeff Bellin and Paul
Marcus for helpful suggestions and to Jake Derr and Peter Landsman for research assistance.
' See United States v. Robinson, 414 U.S. 218,236 (1973) (holding that police officers may
search one's person incident to arrest, including any containers on the person); Wayne A. Logan,
An Exception Swallows a Rule: Police Authority to Search Incident to Arrest, 19 YALE L. &
POL'Y REv. 381, 394 (2001).
2 See Logan, supra note 1, at 391-92 (citing Chimel v. California, 395 U.S. 56 (1950)).
See, e.g., Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L.
REv. 27, 47 (2008) [hereinafter Gershowitz, The iPhone Meets the Fourth Amendment].
4 See Robinson, 414 U.S. at 235 (holding that the search incident to arrest doctrine is auto-
matic, regardless of the actual presence of the doctrine's rationale).
See Gershowitz, The iPhone Meets the Fourth Amendment, supra note 3, at 38-39 (dis-
cussing the lack of any conceptual difference between searching a person's body or physical
containers on that body for drugs and searching electronic equipment for digital information,
as first recognized by the Fifth Circuit).
601](ViewImageLocal?handle=hein.journals/wmbrts22&div=26&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most