In a pair of cases with widespread implications, the Supreme Court recently heard arguments concerning whether or not police may search the contents of a person's cell phone, without a warrant, incident to his or her arrest. Although more nuanced, in general terms, the rationale behind permitting warrantless searches incident to arrest is two-fold: (1) officer safety and (2) evidence gathering and preservation. Thus, in a search incident to an arrest an officer is looking for weapons, contraband, and other evidence of a crime for which they made the arrest. At issue here is whether this same rule applies to cases involving the search of the digital contents of a cell phone seized during a person's arrest.

The first case involved the search of a smart-phone and the second involved the search of a flip-phone. In oral argument, the Court seemed the most concerned with the implications of allowing searches of a smart phone, which contains a vast amount of personal data. As explained by Justice Kennedy, “[w]e're living in a new world. Someone arrested for a minor crime has their whole life exposed on this little devise.” Justice Kagan expressed similar skepticism. She explained, “[a] person can be arrested for driving without a seatbelt. . . . And the police could take that phone and could look at every single email that person has written, including work emails, including emails to family members, very intimate communications, could look at the person's bank records, could look at the person's medical data, could look at the person's calendar, could look at the person's GPS.”

Although some of the justices skepticism seemed to hint that the Court will not allow unbridled searches of smart phones incident to any arrest, the tenor of oral arguments do not always indicate the Court's outcome. The Court should issue and opinion in the case in the coming months. We'll be sure to report back once the Court issues an opinion.