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56 UCLA L. Rev. 27 (2008-2009)
The iPhone Meets the Fourth Amendment

handle is hein.journals/uclalr56 and id is 29 raw text is: THE iPHONE MEETS THE FOURTH AMENDMENT Adam M. Gershowitz Under the search incident to arrest doctrine, police may search the entire body and immediate grabbing space of an arrestee, including the contents of all contain- ers, without any probable cause. Because almost all traffic infractions are arrestable offenses, police have enormous opportunity to conduct such searches incident to arrest. In the near future, these already high-stakes searches will become even more important because millions of drivers will not only possess containers that hold a few scattered papers, such as wallets or briefcases, but also iPhones-capable of holding tens of thousands of pages of personal information. If current Fourth Amendment jurisprudence is extended to its logical conclusion, officers who arrest drivers for traffic infractions will be permitted to search the call histories, text messages, email, photos, movies, and internet browsing history on iPhones with no suspicion of wrongdoing whatsoever. This Article demonstrates how the full contents and multiple applications of iPhones can be searched without a warrant or probable cause under existing U.S. 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. Courts and legislatures can attempt to minimize this invasion of privacy by changing the legal rules to require that searches be related to the purpose of the arrest, by limiting searches to applications that are already open, by restricting suspicionless investiga- tion to a small number of discrete steps, or by limiting searches to data already downloaded onto the iPhone, rather than data that is merely accessible through the iPhone's internet connection. IN TRO DU CTIO N ......................................................................................................................28 I. THE SEARCH INCIDENT TO ARREST DOCTRINE AS A SEARCH FOR BRIGHT-LINE RULES ........................................................................................ 32 II. BRIGHT-LINE RULES IN AN ERA OF PAGERS AND CELL PHONES ............................36 III. THE STAKES AND LIKELY RESULTS WHEN THE iPHONE MEETS THE SEARCH INCIDENT TO ARREST DOCTRINE........................................................................... 40 IV. DISENTANGLING THE iPHONE FROM A BRIGHT-LINE RULE: POSSIBLE APPROACHES TO CABINING THE SEARCH INCIDENT TO ARREST DOCTRINE..............45 A. Change Nothing: The Search Incident to Arrest Rule Works Well, So Changing It to Account for New Technology Is Not a Good Idea ..........45 * Associate Professor, South Texas College of Law. I am grateful to John Blevins, Dale Carpenter, Sharon Finegan, John W. Hall, Orin Kerr, Dan Markel, Usha Rodrigues, and Andrew Solomon for their helpful comments. 27

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