Why Arizona v. Gant Is the Wrong Solution to the Warrantless Cell Phone Search Problem

4 Pages Posted: 4 Oct 2013 Last revised: 20 Nov 2013

Date Written: October 2, 2013

Abstract

This brief essay rejects the argument made by some scholars that Arizona v. Gant’s "reasonable to believe" framework should be applied to searches of cell phones incident to arrest. The Gant decision scaled back the searches of automobiles incident to arrest by requiring that police reasonably believe evidence of the crime of arrest might be found in the vehicle. The Gant doctrine is a poor choice for cell phone searches because it is reasonable for police to believe evidence of numerous minor offenses – drunk driving, theft, possession of small amounts of marijuana, public intoxication, graffiti, prostitution, and disorderly conduct – might be found on a cell phone. As technology improves, the number of minor offenses that could give rise to a warrantless cell phone search under Gant would likely increase. And at the same time that the Gant doctrine would provide police with broad authority, it would fail to set clear lines for which cell phone searches are permissible and which are not.

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

Suggested Citation

Gershowitz, Adam M., Why Arizona v. Gant Is the Wrong Solution to the Warrantless Cell Phone Search Problem (October 2, 2013). Boston University Law Review Annex, 2014, Forthcoming; William & Mary Law School Research Paper No. 09-262. Available at SSRN: https://ssrn.com/abstract=2334977

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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