Download this Paper Open PDF in Browser

Password Protected? Can a Password Save Your Cell Phone from the Search Incident to Arrest Doctrine?

51 Pages Posted: 31 Aug 2010  

Adam M. Gershowitz

William & Mary Law School

Date Written: August 31, 2010

Abstract

Over the last few years, dozens of courts have authorized police to conduct warrantless searches of cell phones when arresting individuals. Under the so-called search incident to arrest doctrine, police are free to search text messages, call histories, photos, voicemails, and a host of other data if they arrest an individual and remove a cell phone from his pocket. Given that courts have offered little protection against cell phone searches, this article explores whether individuals can protect themselves by password protecting their phones. The article concludes, unfortunately, that password protecting a cell phone offers minimal legal protection. In conducting a search incident to arrest, police may attempt to hack or bypass a password. Because cell phones are often found in arrestees’ pockets, police may take the phones to the police station where computer savvy officers will have the time and technology to unlock the phone’s contents. And if police are themselves unable to decipher the password, they may request or even demand that an arrestee turn over his password without any significant risk of the evidence on the phone being suppressed under the Miranda doctrine or as a Fifth Amendment violation. In short, while password protecting a cell phone may make it more challenging for police to find evidence, the password itself offers very little legal protection. Accordingly, legislative or judicial action is needed to narrow the search incident to arrest doctrine with respect to cell phones.

Keywords: Search Incident to Arrest, Search, Warrantless, Cell Phone, iPhone, Password, Self Incrimination, Compulsion, Testimonial

Suggested Citation

Gershowitz, Adam M., Password Protected? Can a Password Save Your Cell Phone from the Search Incident to Arrest Doctrine? (August 31, 2010). Iowa Law Review, Forthcoming; University of Houston Law Center No. 2010-A-29. Available at SSRN: https://ssrn.com/abstract=1669403

Adam M. Gershowitz (Contact Author)

William & Mary Law School ( email )

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

Paper statistics

Downloads
720
Rank
28,120
Abstract Views
7,040