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Foreword: Accounting for Technological Change

7 Pages Posted: 17 Mar 2013 Last revised: 13 Jul 2015

Orin S. Kerr

The George Washington University Law School

Date Written: March 16, 2013


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); GWU Legal Studies Research Paper No. 2013-73; GWU Law School Public Law Research Paper No. 2013-73. Available at SSRN:

Orin Kerr (Contact Author)

The George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4775 (Phone)
202-994-9817 (Fax)


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