Police officers lawfully arrest a suspect, search him, and seize his cell phone. Sometime later, without first getting a search warrant, an officer answers an incoming call, reads an incoming text, or examines the phone’s memory, call log, prior text messages, photographs, or Internet access records. As a result, the police acquire information that leads to additional evidence concerning the arrest crime, or a totally different and unrelated crime. Prior to trial, the defendant moves to suppress the evidence. The prosecutor argues that the officer’s action was justified by exigent circumstances, constituted a lawful search incident to the arrest, or both. Part I of this Article sets out the general rules governing searches and seizures by the police. Part II examines the exigent circumstances doctrine and its application to cell phone searches. It concludes that, properly construed, that doctrine can be applied to cell phone searches without excessive invasions of privacy. Part III examines the search incident to arrest doctrine, criticizes the courts that have taken either too permissive or too restrictive an approach to that doctrine’s application to cell phone searches, and proposes an approach that strikes an appropriate balance between the purposes underlying the doctrine and respect for the quantity and kinds of information that the typical cell phone contains.
Clifford S. Fishman, Searching Cell Phones After Arrest: Exceptions to the Warrant and Probable Cause Requirements, 66 RUTGERS L. REV. 995 (2013).