One of the fascinating Fourth Amendment questions that many state courts have been grappling with is how the "search incident to arrest" exception applies to the search of cell phones. According the United States Supreme Court, officers can search anything on the person when the person is arrested – such as, letters, booklets, wallets, crumpled packages, closed containers, and the like – and the officers don't need a warrant or permission to search those things. The question is should this rule apply to cell phones?

If you feel that the police do not have a right to go through your phone then stay out of Oregon, California, and Georgia. Recent cases in those states have given the police the authority to search through an individual's cell phone after they are arrested, and the courts say the cops do not need a warrant either. The bad news is more and more states seem to be jumping on the same bandwagon to allow police to search an individual's cell phone without permission and without a warrant. So far this issue has not been resolved in Missouri Courts.

The basic logic of the courts in the states that allow for the cops to search a person's cell phone incident to arrest is to allow the officer to preserve evidence. The courts are trying to say that if the officer does not search through the cell phone right away there is a possibility that information on the phone can be lost forever. However, this argument does not hold weight in today's technological age.

According to a 2010 study by Nielsen, most cell phone users will own smartphones by the end of 2011. These smartphones have increasingly large information storage capacities. With these large storage capacities information can be kept on the phone for the life of the phone. There is no urgency that cell phone information will disappear if the police don't search it right away.

I do not personally feel that the police should be able to search a person's phone when they are arrested, however it seems that many courts are allowing for this. My advice is to password protect your cell phone. When you are arrested you have the right to remain silent, if your phone is password protected you do not have to tell the cops what the password is. Moreover, password protecting your phone gives the outward appearance that you hold what is in your phone private. In a legal context it is very important to let cops know you consider something private and not public.

If you ever are arrested and the police search your phone without your permission and find information on there that implicates you in a crime make sure you contact a criminal defense attorney at our firm. We can discuss your options and see if this type of evidence can be kept out of evidence against you.