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 UScriminal procedure. The author emphasizes the value of this experience to solve the problems arisingin the Russian criminal procedure, because, as experts point out, Russian legislator doesn`t takeinto account particular qualities of evidences obtained from electronic sources. The author analyzesthe attitude of the US Supreme Court formulated on the basis of the Fourth Amendment to the USConstitution prohibiting unreasonable searches in relation to a search incident to a lawful arrest. TheCourt differentiated search of the arrested person and the objects in the zone of his immediate controland highlighted the possible targets of search — to secure police officers and to prevent the destructionof evidence. Next, the author studies the positions of lower courts which addressed this issue invarious ways — from unlimited phone searches without a warrant to a total ban of such searches inthe absence of the exigent circumstances. Then, the author analyzes the doctrinal positions about therestriction of warrantless cell phone search incident to a lawful arrest: internet-based test; functionaltest; open application test; limiting the number of operations committed by police officers. The criticismof 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 thesearch of a cell phone without obtaining a warrant, even if it is incident to a lawful arrest. The opinionconcurring in part is presented by Judge Alito, who, in particular, pointed out that the legislator shoulddraw 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 stillresolved by US Supreme Court. The most important of them is the applicability of these rules to tabletsand other similar devices.