My View of How the Fourth Amendment Should Apply to Searching A Cell Phone Incident to Arrest

The lower courts are divided on whether the Fourth Amendment permits the police to search a cell phone discovered on a person incident to arrest without first obtaining a warrant. I have a very short essay (5 pages) on this issue that is the Foreword for a forthcoming symposium on law and technology appearing in the Harvard Journal of Law & Public Policy. The essay is Foreword: Accounting for Technological Change. Here’s the abstract:

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, the Court should adopt the standard introduced in Arizona v. Gant, 556 U.S. 332 (2009), for searching an automobile incident to arrest.