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Cell Phone Searches Incident to Arrest

There is a debate across the states as to whether the search of a cell phone's data pursuant to arrest is lawful.


In 1995, I recall purchasing my first "cell phone." The kind that came in a bag that made you look like a field lieutenant calling in an air strike? It was big and bulky, had a huge battery, the handpiece was actually connected to a chord- not something you really carried on you for a night on the town! Not to mention, there were only two other people I could actually call that had one too.

Now, cell phones are in purses, cars, pockets, and bags. You feel naked without one. They are a treasure trove of information. They contain addresses, phone numbers, facebook pages, twitter feeds, and searches done on Google, Bing, and others. That's why most of us have a passcode activated to even access the thing. Frankly, I'd rather lose my purse than my cell phone.

A search incident to a lawful arrest is an exception to the warrant requirement of the 4th Amendment to the U.S. Constitution. A search incident to arrest permits the police to search your person and any "containers" within your possession. There is now a divide in the Country as to whether a cell phone (smart-phone) constitutes a simple "container," like a pack of cigarettes.

Courts in Georgia and Massachusetts have held that the search of a cell phone incident to arrest is valid. However, courts in Ohio and Florida have rejected the notion that a cell phone is a simple "container" that can be searched without a warrant. A court in Texas, however, has held to the contrary. "A cell phone is not a pair of pants."

Is there a difference between the Phone itself and the Data?

A cell phone is not a "container" like a pack of cigarettes or a jacket pocket. Advances in technology make this argument seem silly. Cell phones store vast amounts of data. They are essentially hand-held, web-enabled, computers. They do not store physical items. Stored data is not a cigarette, marijuana, or a piece of drug paraphernalia found in a pocket or a container. The police should hold the phone and gain a search warrant for its contents where they believe that evidence of a crime(s) is contained therein. The expectation of privacy that connect with our cell phones these days is far to high. That is precisely what the 4th Amendment is designed to protect.

If you've been arrested and subjected to a search of your car, person or cell phone, you need an experienced criminal defense attorney to assist you in your representation. You may contact Shaffer & Engle (717) 268-4287 or email us today.