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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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