Seizing a Cell Phone Incident to Arrest: Data Extraction Devices, Faraday Bags, or Aluminum Foil as a Solution to the Warrantless Cell Phone Search Problem

When police conduct a lawful custodial arrest, can they search the cell phone in your pocket? Numerous courts have reached conflicting conclusions on this question. This Article argues that police should only be permitted to seize cell phones incident to arrest. If the police are concerned about data being remotely wiped from the phone while they wait for a search warrant, the officers should preserve the data by using either a data extraction device to copy the phone's contents, an inexpensive bag called a Faraday cage to prevent remote wiping of the cell phone, or a simple sheet of aluminum foil to immobilize the phone.Under the search incident to arrest doctrine, police have long been permitted to open any item on an arrestee, whether they have probable cause for that particular item or not.1 The rationale is that arrestees could try to destroy evidence or use hidden objects to harm officers.2 And because police conduct millions of searches per year,3 the Supreme Court has established a bright-line rule.4 Decades of precedent therefore seem to indicate that police can search through the full contents of any item on an arrestee, including electronics.5But surely cell phones must be different. After all, while wallets hold business cards and a few scraps of paper, cell phones contain thousands of pictures, emails, Facebook information, Internet browsing history, and map locations-and that is just the information accessible from the first screen of the device. If the police can search your cellphone incident to arrest, then they can search your entire life. And they would have this power even if they arrested you for a low-level crime-think of public intoxication, petty theft, or even texting while driving6-because longstanding doctrine indicates that the scope of the search has no relation to the severity of the crime of arrest.7In these circumstances, what are courts to do? Should they follow decades of precedent from the pre-Internet era even though that seems illogical? Or should they disregard controlling Supreme Court precedent and try to carve out a new search incident to arrest rule that would only apply to cell phone searches?This Article suggests that the lower courts (and eventually the Supreme Court) should only allow police to seize cell phones incident to arrest. Then, while waiting for a search warrant, police should preserve the cell phone data by using either a data extraction device to copy the phone's contents, an inexpensive bag called a Faraday cage to prevent remote wiping of the cell phone, or a simple sheet of aluminum foil to immobilize the phone.After briefly surveying the state of the law, I review some of the other proposals for limiting cell phone searches and explain why they are flawed.81 then explain the practical ease with which police would be able to seize a phone and preserve its data while waiting for a search warrant.9 Finally, I review previous instances in which the Court has allowed warrantless seizures, but not searches, and demonstrate how cell phones fit squarely into that paradigm.10I. The State of the Law: Confusion and InconsistencyThe initial response by most courts to warrantless cell phone searches incident to arrest was to rely on Supreme Court precedent for tangible items.11 Led by the U.S. Court of Appeals for the Fifth Circuit,12 most courts concluded that cell phones are containers in the same way that wallets, pockets, and purses are containers, and that the phones can therefore be searched incident to arrest.13 By 2010, more than thirty courts had issued opinions approving warrantless cell phone searches incident to arrest.14 As the years ticked on and cell phone technology became more sophisticated, however, courts began to challenge the conventional wisdom.15 In a prominent decision, the Ohio Supreme Court prohibited warrantless cell phone searches incident to arrest because cell phones "are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container. …