The United States Supreme Court has yet to consider whether the Search Incident to Arrest exception to the Fourth Amendment’s warrant requirement applies to searches of cellphones, I-Pads, Laptops and other “smart” devices seized pursuant to a lawful arrest. The majority of jurisdictions to have considered the issue have determined the Fourth Amendment permits law enforcement officers to search your cellphone if it is recovered from your person or presence during a lawful arrest.
Allowing police officers to search items recovered incident to your arrest probably makes sense when law enforcement officers search a three dimensional object like a cigarette pack, but makes little sense when law enforcement officers search your cellphone or other “smart” device which possesses a “fourth dimension”, and the search may be better understood as a search of a place rather than as a search of a thing.
The depth and breadth of the information “housed” in your cellphone makes the part of your cellphone that “houses” your pictures and videos look like your living room, makes the part of your cellphone that “houses” your business and financial records look like your office, and makes the part of your cellphone that “houses” your private, personal information look like your bedroom.
Once courts abandon the three dimensional perspective, at least in the context of cellphones and other “smart devices”, and acknowledge the reality that such devices possess a fourth dimension and more closely resemble a “place” than an object, it becomes less defensible to treat these devices like cigarette packs. Because, from the fourth dimensional perspective, a search of such devices resembles the search of a place or “home” the Fourth Amendment’s warrant and particularity requirements become increasingly necessary to safeguard your significant privacy interests in the your phone.
Such an approach represents not only a more “workable” framework, but also a more intuitive and desirable one. Respect for our privacy rights only strengthens this position. Practically, if courts permit searches of the cellphone’s “fourth dimension”, courts should at the very least prohibit law enforcement officers from searching these devices incident to an arrest for a minor offense. The law simply cannot permit law enforcement to invade our smart devices incident to an arrest for a minor offense like a seatbelt violation.

Written by James H. Arenson

Last Updated : February 13, 2024