Doctrinal Collapse: Smart Phones Cause Courts to Reconsider Fourth Amendment Searches of Electronic Devices
63 Pages Posted: 14 Nov 2010 Last revised: 10 Aug 2014
Date Written: November 13, 2010
In December 2009, the Ohio Supreme Court held that even if a cell phone is lawfully seized incident to arrest, the Fourth Amendment prohibits the police from searching the contents of the cell phone without a warrant. News about the decision received positive national attention; “The Ohio Supreme Court has struck an important blow for privacy rights,” editorialized the New York Times. The Ohio Supreme Court opinion is remarkable because it distinguished long standing doctrine that a search incident to arrest includes the ability to search the contents of any container found on the person. Previously, Courts have almost universally permitted the search of contents of electronic devices, including pagers and cell phones, by viewing these electronic items as containers. The Ohio Supreme Court is one of the first courts to recognize that, due to the technological sophistication and nature of use of modern cell phones, a search of these devices creates such a heightened burden on the expectation of privacy that previous interpretations of the search incident to arrest doctrine are rendered obsolete. I argue that the decision signals a future willingness by courts to treat the differences between electronic devices and other containers as not one of degree, but of kind. The article then examines a similar tension in the application of traditional Fourth Amendment doctrine to the use by law enforcement of other sophisticated technologies, such as GPS devices. The article concludes by suggesting a possible new approach for distinguishing new technology from traditional Fourth Amendment doctrine based on First Amendment principles.
Keywords: Fourth Amendment, Cell Phones, Search and Seizure, Crimal Law, Criminal Procedure, Technology, Privacy
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