Abstract

Over the last few years, dozens of courts have authorized police to conduct warrantless searches of cell phones when arresting individuals. Under the “search incident to arrest” doctrine, police are free to search text messages, call histories, photos, voicemails, and a host of other data if they arrest an individual and remove a cell phone from his pocket. Given that courts have offered little protection against cell-phone searches, this Article explores whether individuals can protect themselves by password protecting their phones. The Article concludes, unfortunately, that password protecting a cell phone offers minimal legal protection when an individual is lawfully searched incident to arrest. In conducting such a search, police may attempt to hack or bypass a password. Because cell phones are often found in arrestees’ pockets, police may take the phones to the police station, where computer-savvy officers will have the time and technology to unlock a phone’s contents. And if police are unable to decipher the password, they may request or even demand that an arrestee turn over his password, without any significant risk of suppression of evidence found on the phone under the Miranda doctrine or the Fifth Amendment’s Self-Incrimination Clause. In short, while password protecting a cell phone may make it more challenging for police to find evidence, the password itself offers very little legal protection to arrestees. Accordingly, legislative or judicial action is needed to narrow the search-incident-to-arrest doctrine with respect to cell phones.

Document Type

Article

Publication Information

96 Iowa Law Review 1125-1175 (2011)

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