Why Arizona v. Gant Is the Wrong Solution to the Warrantless Cell Phone Search Problem
Adam M. Gershowitz
William & Mary Law School
October 2, 2013
Boston University Law Review Annex, 2014, Forthcoming
William & Mary Law School Research Paper No. 09-262
This brief essay rejects the argument made by some scholars that Arizona v. Gant’s "reasonable to believe" framework should be applied to searches of cell phones incident to arrest. The Gant decision scaled back the searches of automobiles incident to arrest by requiring that police reasonably believe evidence of the crime of arrest might be found in the vehicle. The Gant doctrine is a poor choice for cell phone searches because it is reasonable for police to believe evidence of numerous minor offenses – drunk driving, theft, possession of small amounts of marijuana, public intoxication, graffiti, prostitution, and disorderly conduct – might be found on a cell phone. As technology improves, the number of minor offenses that could give rise to a warrantless cell phone search under Gant would likely increase. And at the same time that the Gant doctrine would provide police with broad authority, it would fail to set clear lines for which cell phone searches are permissible and which are not.
Number of Pages in PDF File: 4
Keywords: search incident to arrest, cell phone, warrantless, Gant, Fourth AmendmentAccepted Paper Series
Date posted: October 4, 2013 ; Last revised: November 20, 2013
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