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In the past it hasn't been the case that we carry around all of our personal documents, correspondence, address books, photography, digital currency/payment, and so on.

Setting a precedent that this private information -- and that is what I believe most people would consider the contents of their phones to be -- can be searched whenever you are stopped by police will only cause real criminals to use disposable/non-smart-phones, and further set a trend towards law enforcement being able (and people considering it normal) to access this information routinely.

Litigation overhead is one consideration, but I think the whole legal system is so horribly behind technology advances in general that I'm not sure it's a valid argument just to streamline the arrest/search process.

I agree that the law is horribly behind.

The flip side of your argument, is that a criminal could store his entire criminal enterprise on a phone.

While I feel it's certainly an invasion of privacy to allow the police full access to my phone in the event of an arrest.

I also feel like some enterprising criminal might offer his friends the ability to remotely wipe their phones in the event of their arrest. Effectively destroying the best source of evidence against someone who uses their phone as a central point of control for criminal activity.

Not sure what a middle ground would be, but I sure hope that someone finds one.

Why should we seek a middle ground? Yes, sometimes criminals will evade prosecution by taking advantage of their civil rights. That does not mean that we should be curtailing civil rights.

Let's put it this way: we have more prisoners than any country on the planet. I do not think we should be concerned about the difficulties police and prosecutors face with evidence collection.

> Let's put it this way: we have more prisoners than any country on the planet. I do not think we should be concerned about the difficulties police and prosecutors face with evidence collection.

I shouldn't have to tell you the illogic of this argument.

> but I think the whole legal system is so horribly behind technology advances in general

I don't think the legal system is "behind technology advances" at least usually. I think the reason technologists think that is because they see technology as unprecedented and game-changing (and all those buzz-words). As a result, they think that technology should get special treatment, instead of being analogized to existing practices and concepts.

That's certainly a reasonable way to approach things, but it's a liberal interpretive doctrine. But, right now we're in the midst of a multi-decade conservative trend in the judiciary. The conservative concept is that there is nothing new under the sun, and even though things change, they can be tied back to enduring principles and basic concepts.

My read is that the judiciary doesn't really fail to understand technology. Judges are smart people. People explain all sorts of complex things to them all the time. Explaining most technology is far simpler than explaining, for example, the complexities of a reinsurance agreement between commercial parties. Rather, the judiciary has consciously adopted the conservative tack of not treating technology specially.

So in the cell phone context, it's not that judges don't understand that you can store all sorts of things on your cell phone. They have kids, they know what people store on their cell phones. Rather, they look at the underlying principles behind the rule: the potential for a suspect to destroy evidence in his possession. Well, that potential exists whether we're talking about a cell phone or a day planner. I.e. you can tie the technology back to a timeless concept (people write down their schedules and a suspect might destroy those notes if arrested). That's not a failure to appreciate the advances of technology--it's a conscious decision not to treat technology differently than existing things.

That would be a fine argument if the police could not always find a reason to arrest people. The DEA has already admitted that it asks local cops to find a reason to pull people over and search their cars. What makes you so sure the same approach would not be used in the case of a cell phone search? We have already seen numerous cases of mass arrests of protesters; under this reasoning, the police should be allowed to search their phones and get more information about planned protests / strategies / etc. (from emails, text messages, etc.).

The police cannot search your car simply because you've been pulled over in a traffic stop. They are required to have probable cause to effect a search or an arrest. There are whole log ACLU videos about not being bamboozled by staties who "ask" to search your car.

Additionally, I think it's important to keep in mind the specific way your protections against search bind on the state. You can always sue the state for harassment or somesuch, but the real day-to-day potency of the Fourth Amendment comes from the Exclusionary Rule, which forbids the introduction of evidence from searches that contravene the Fourth Amendment as interpreted by the courts.

Point being: yes, the police can always find reasons to arrest you. For that matter, they can ignore their General Orders entirely, throw you up on your car, and search you and your bags with no cause whatsoever; if you resist that illegal search, you'll be charged (and probably convicted!) of battery. But in the system we have, there's not much point to them doing that, because if they make a bullshit arrest, the evidence they generate from the resulting search will get tossed. Getting arrested is a big deal. They can't just arrest you because you look funny.

>> The key consideration for such searches is securing weapons and preventing the suspect from destroying evidence. The weapon concern obviously doesn't exist with cell phones, but the destruction of evidence concern certainly does.

I don't buy that. There is nothing stopping an officer from physically obtaining the phone to preserve its' state pending later search under warrant. The immediate search of a pack/container/whatever for physical threat, I understand. The contents of a phone don't fit this same criteria.

I think you might be confusing two different search authorizations; people make this mistake all the time.

The first common authorization for a search comes from Terry, and allows the police to conduct a cursory search of the outer layers of your clothing (not including pockets) to attempt to detect weapons. The grounding for Terry searches is exclusively officer safety. Terry searches are the basis of "stop and frisk".

The second common authorization is "incident to arrest". The police can conduct a thorough search of your person, effects, and immediate vicinity if they actually place you under arrest. The grounding for this search is both officer safety and collection of evidence. In fact, I think even Rayiner is a little wrong here; the incident to arrest authorization doesn't merely concern destruction of evidence, but is specifically concerned with collecting all the evidence that could be the fruit of an arrest, whether or not it's at risk of destruction. The meaning of search incident to arrest goes all the way back through Common Law.

The Obama DoJ is clearly referring to search incident to arrest.

Exactly. If there's probable cause to believe that there's information on the phone that may be related to a crime, getting a warrant should be easy. If there's no probable cause, they have no business searching the phone.

I think that might very well be the most reasonable rule.

> There is apparently not space in this article for the important qualifier: during a search incident to arrest.

Why do you say that? In the article it clearly states:

> The case in question dates back to 2007, when a man from Massachusetts was arrested for allegedly selling crack cocaine. Police seized his cell phone and, without a warrant, searched its contents to access information that allowed them to locate the defendant’s home.

Did it not say that when you wrote this comment, or were you merely commenting on the headline or first two paragraphs of the article?

Sorry, I meant in the title.

That certainly may be a reasonable argument to make. But they already lost. A court found that this was, after all, not reasonable.

And at this point all arguing over what seems sane under the law[1] becomes pointless. It's a political decision to continue to appeal the supreme court, not a legal one.

And this administration has decided that police should be able to do a complete search of your phone after having arrested you. A search without a warrant, since all the discretion to arrest is with the police.

[1]: a law from 18xx, where people were lucky to carry some coins with them, not their life on digital storage media.

> That certainly may be a reasonable argument to make. But they already lost. A court found that this was, after all, not reasonable.

The 1st Circuit does not state the law of the land. It's a reasonable position, up against another very reasonable position, and it's up to the Supreme Court to decide to adopt one or the other.

This is a sensible, intuitive argument to make.

Intuition is not universal; it's cultural. To some people, who use the mental analogy "a phone is like a little bag, and information is like items I put inside that bag" it's intuitive. To people who use the mental analogy "a phone is a little hole in spacetime I use to communicate with someone who is somewhere else, and information on the phone is part of a private conversation" it's not intuitive.

courts are filled with all sorts of nonsense by criminal defendants trying to get off on the technicalities of searches.

You had me until then. "Criminal defendants trying to get off on technicalities of searches" is how we protect our Fourth Amendment rights.