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I follow Professor Jessica Smith on Twitter. She is the W.R. Kenan Jr. Distinguished Professor at the University of North Carolina School of Government. A post from her today about cellular phones is timely; I’m currently involved in a case where my client’s cell phone was searched by law enforcement, without a warrant.

There is a line of cases which hold certain things may be searched, without a warrant, incident to a person’s arrest. Those items include: (1) the person arrested and the area within his immediate control; (2) a vehicle when the person arrested is unrestrained and within reach of the passenger compartment; and (3) a vehicle when it is reasonable to believe evidence relevant to the crime of arrest might be found therein. The touchstone of any search incident arrest is “reasonableness.”

In 2014, in a case called Riley v. California the United States Supreme Court tackled the issue of whether the search of a cell phone incident to arrest fell within the exception to the warrant requirement of the  Fourth Amendment. The Riley Court explored several things which set cell phones apart from other items found on people when they are arrested. For example, the Supreme Court noted “modern cell phones…are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” The Supreme Court also was wary of extending the search-incident-to-arrest doctrine to cell phones because those devices:

differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras,video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.

The Supreme Court also commented on the “immense storage capacity” of cell phones, noting:

Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy. … Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant.

The Riley Court determined the Fourth Amendment required the government to obtain a warrant to search the contents of a cellular phone.

Unfortunately, my client likely did not know of the Riley decision. In my case, my client was arrested. Law enforcement seized her telephone. Before seeking a warrant to search it, the police officers  asked my client if they could perform a search of her cellular phone. Instead of insisting they “get a warrant,” my client consented to the search, thus waiving her Fourth Amendment right concerning that phone. Incriminating evidence was discovered and, unless I can find a way to challenge my client’s waiver of her rights, that evidence is fully admissible at any trial.