Foreword: Accounting for Technological Change

7 Pages Posted: 17 Mar 2013 Last revised: 17 Mar 2018

See all articles by Orin S. Kerr

Orin S. Kerr

University of California, Berkeley School of Law

Date Written: March 16, 2013

Abstract

This short essay considers how the Fourth Amendment should apply to the search of a cellular phone seized incident to arrest. It argues that the storage capacity and type of evidence stored on a cell phone justifies a departure from existing Fourth Amendment doctrine. Under United States v. Robinson, 414 U.S. 218 (1973), the Fourth Amendment always permits a "full" search of a person and property on his person at the time of arrest. This essay argues that the Supreme Court should reject that standard for searches of digital storage devices. Instead, Court should adopt the standard that the Court adopted in Arizona v. Gant, 556 U.S. 332 (2009), for searching an automobile incident to arrest.

Keywords: Fourth Amendment, cell phones, search incident to arrest

Suggested Citation

Kerr, Orin S., Foreword: Accounting for Technological Change (March 16, 2013). 36 Harvard Journal of Law and Public Policy 403 (2013). Available at SSRN: https://ssrn.com/abstract=2234319

Orin S. Kerr (Contact Author)

University of California, Berkeley School of Law ( email )

Boalt Hall
Berkeley, CA 94720-7200
United States

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