Warrantless Searches And Smartphones: Privacy In The Palm Of Your Hand?

Incident to a drug arrest, a police officer removes a smartphone from the pocket of the defendant. The smartphone may have incriminating evidence-phone numbers, pictures, text messages, and e-mails. But can the officer examine the smartphone on the scene or back at the station? Or does the officer need to show probable cause and obtain a warrant before examining the phone?

If the phone were instead the arrestee's wallet or a cigarette package, under the search incident to lawful arrest exception to the Fourth Amendment's warrant requirement the officer could open and search inside either of these "containers." Anything found in the wallet or cigarette package, including evidence of a crime other than the one of arrest, could then lawfully be used against the arrestee.1 The United States Supreme Court has not yet had occasion to address the warrantless search of a cell phone or smartphone incident to arrest. However, the vast majority of courts, both state and federal, to have considered the issue have allowed warrantless searches of cell phones pursuant to this exception, reasoning that cell phones are containers like any other found on an arrestee.