“That information is, by and large, of a highly personal nature: photographs, videos, written and audio messages (text, email and voicemail), contacts, calendar appointments, web search and browsing history, purchases and financial and medical records,” Judge Norman H. Stahl of the U.S. Court of Appeals for the 1st Circuit wrote recently. “It is the kind of information one would previously have stored in one’s home.”
Stahl wrote for the majority in a 2 to 1 decision that applied the Fourth Amendment to the search of a cellphone found on a man arrested for selling drugs. The amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
In most cases, a warrant is required. But the Supreme Court has said there are numerous exceptions to that general rule. In particular, in what courts refer to as “search incident to arrest,” a warrantless search is justified when officers are protecting themselves by looking for weapons or securing evidence that might be destroyed.
And justices in the past have been lenient about allowing searches of items found on a person who has been legally arrested.