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Searching Cell Phones Incident to Arrest

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The Supreme Court heard two cases last week about whether the warantless search of the digital contents of a cell phone incident to the arrest of its possessor is permissible and, if so, under what circumstances and to what extent.

This is a complicated and important question, and I'm not going to attempt an answer, not least because I don't even carry a cell phone, not wanting to be available to the entire world 24/7.  I have only two impressions about the case. First, the Court should not and isn't going to walk away from the venerable and necessary rule permitting warrantless searches incident to arrest simply because we are in a new, digital world.  Second, the Court, being divided ideologically, although somewhat of a pragmatic turn of mind on police-related questions, and prone to the dreaded balancing test, will come up with a compromise.

Fourth Amendment expert Orin Kerr gives us an education on the question here.

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