The iPhone Meets the Fourth Amendment

33 Pages Posted: 17 Jan 2008  

Adam M. Gershowitz

William & Mary Law School

Date Written: January 15, 2008

Abstract

Imagine that police arrest an individual for a simple traffic infraction, such as running a stop sign. Under the search incident to arrest doctrine, officers are entitled to search the body of the person they are arresting to ensure that he does not have any weapons or will not destroy any evidence. The search incident to an arrest is automatic and allows officers to open containers on the person, even if there is no probable cause to believe there is anything illegal inside of those containers. What happens, however, when the arrestee is carrying an iPhone in his pocket? May the police search the iPhone's call history, cell phone contacts, emails, pictures, movies, calendar entries and, perhaps most significantly, the browsing history from recent internet use? Under longstanding Supreme Court precedent decided well before handheld technology was even contemplated, the answer appears to be yes. This article demonstrates how the full contents and multiple applications of iPhones can be searched without a warrant or probable cause under existing Supreme Court precedent. The article also offers approaches courts and legislatures might adopt to ensure greater protection for the soon-to-be pervasive iPhone devices.

Keywords: iPhone, search incident to arrest, Fourth Amendment, cell phone, warrantless searches

Suggested Citation

Gershowitz, Adam M., The iPhone Meets the Fourth Amendment (January 15, 2008). Available at SSRN: https://ssrn.com/abstract=1084503 or http://dx.doi.org/10.2139/ssrn.1084503

Adam M. Gershowitz (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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