Cell Phone Search during Lawful Arrest in US Criminal Procedure

Abstract

The paper studies the legality of warrantless cell phone search incident to a lawful arrest in the US criminal procedure. The author emphasizes the value of this experience to solve the problems arising in the Russian criminal procedure, because, as experts point out, Russian legislator doesn't take into account particular qualities of evidences obtained from electronic sources. The author analyzes the attitude of the US Supreme Court formulated on the basis of the Fourth Amendment to the US Constitution prohibiting unreasonable searches in relation to a search incident to a lawful arrest. The Court differentiated search of the arrested person and the objects in the zone of his immediate control and highlighted the possible targets of search — to secure police officers and to prevent the destruction of evidence. Next, the author studies the positions of lower courts which addressed this issue in various ways — from unlimited phone searches without a warrant to a total ban of such searches in the absence of the exigent circumstances. Then, the author analyzes the doctrinal positions about the restriction of warrantless cell phone search incident to a lawful arrest: internet-based test; functional test; open application test; limiting the number of operations committed by police officers. The criticism of these approaches is presented. The author studies the main arguments of the US Supreme Court, which in 2014 in cases Riley v. California and United States v. Wurie declared unconstitutional the search of a cell phone without obtaining a warrant, even if it is incident to a lawful arrest. The opinion concurring in part is presented by Judge Alito, who, in particular, pointed out that the legislator should draw reasonable distinctions regarding when and what information within a phone can be searched incident to arrest without obtaining a warrant. Finally, the author studies the problems that are not still resolved by US Supreme Court. The most important of them is the applicability of these rules to tablets and other similar devices.