Police across the country are searching Americans smartphones for minor offenses.

In most states, police can arrest people for minor offenses, including traffic offenses punishable only by a fine. In 2001, the U.S. Supreme Court upheld the ability of police in Texas to arrest a woman for failure to wear a seat belt after she was stopped while driving her two children home from soccer practice. Atwater v. Lago Vista, 532 U.S. 318 (2001).

In the Atwater case, the woman was handcuffed and driven to the police station where she was booked and photographed. Her car was inventoried and towed. She ended up paying a $50 fine. Had the arrest in the Texas case happened today, the police could also likely have searched through her cell phone. This means, if she had a smartphone such as iPhone or Android, the police could search through all of her text messages, photos, calendar entries, and e-mails. In other words, much of her personal life would be exposed to the police as a result of her failing to wear a seatbelt.

As cell phones contain greater amounts of personal information, it seems that the Fourth Amendment would require police to obtain a warrant prior to searching through the contents. However, a number of courts, relying on Supreme Court cases decided before cell phones existed, have permitted these searches without warrants when a person is arrested.

In allowing searches of cell phones after an arrest, courts have relied on an exception to the Fourth Amendment created by the Supreme Court known as "the search incident to arrest doctrine." See, Chimel v. California, 395 U.S. 752 (1969). Under this rule, after an arrest, the police are permitted to search an arrestee's person, clothing, and area of immediate control.

The justification for a search incident to arrest is that people under arrest may be able to use any weapons in their possession to injure to officers or attempt an escape. The doctrine is also justified by a concern the people under arrest may seek to destroy any incriminating evidence within reach.


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