But Your Honor, a Cell Phone is Not a Cigarette Pack: An Immodest Call for a Return to the Chimel Justifications for Cell Phone Memory Searches Incident to Lawful Arrest

Abstract

Although cell phones and smart phones with immense digital memories containing their users’ most private information are now in the pockets of millions of Americans each day, cell phone memories are subject to unfettered searches incident to lawful arrest in most jurisdictions. Courts upholding cell phone memory searches analogize to Supreme Court and other superior court cases affirming searches incident to lawful arrest of crumpled cigarette packs, pagers, wallets, and address books, apparently on the theory that cell phones are likewise small, carried in pockets, and can contain personal information.

Given the ubiquity of cell phones, and their users’ propensity to store vast amounts of private information on them, the time has come to distinguish cell phone memories from cigarette packs, pagers, wallets, and address books; recognize that cell phone users have an objectively reasonable expectation of privacy in their cell phone memories; and return to the twin Chimel v. California justifications for searches incident to arrest that such searches are only constitutionally permissible if they are either necessary to ensure officer safety, or necessary to safeguard evidence from destruction or loss.

This Article argues that neither Chimel justification pertains to cell phone memory searches incident to lawful arrest; therefore, such searches are unconstitutional without a search warrant issued by a neutral magistrate, or when some other traditional exception to the warrant requirement applies. This Article posits that since a cell phone is not like a cigarette pack, courts should simply be applying the general search incident to arrest principles from Chimel rather than applying strained analogies to cases permitting searches (incident to arrest) of items that are not analogous to cell phones.

Keywords: Fourth Amendment, Search & Seizure, Cell Phones, Search Incident to Arrest