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Search Incident to Arrest in the Age of Personal Electronics

NCJ Number
FBI Law Enforcement Bulletin Volume: 76 Issue: 9 Dated: September 2007 Pages: 26-32
Michael J. Bulzomi J.D.
Date Published
September 2007
7 pages
This article discusses the scope of the legal authority of police officers to search electronic items in the arrestee's possession in the course of an arrest (e.g., cellular telephones, pagers, mp3 players, flash drives, personal digital assistants, and laptop computers).
Over 30 years ago in United States v. Robinson, the U.S. Supreme Court held that the interests of officer safety and preservation of evidence outweigh an arrestee's privacy interests, which makes such searches reasonable under the fourth amendment; however, the Court has limited the search to the area where the arrestee could gain possession of a weapon or destroy evidence. This space is commonly called the "lunge" area. The search of this space is permitted even after the defendant is in handcuffs or officers have otherwise restricted the arrestee's movement. The Court further required that the search be conducted at the time of the arrest, meaning that any property removed from the "lunge space" for a later search for evidence requires a separate search warrant. Lower courts have addressed the lawful scope of the search incident to arrest with respect to electronic technology, relying upon "Robinson" to guide their determination of the reasonableness of police actions in retrieving stored information within devices carried by the arrestee. There is little doubt about the legality of searches of arrestee possessions when any evidence can be found in a relatively short period. The vastly different storage capacities of some electronic devices, however, may take days to examine their contents. Also, enhanced privacy protections, such as the use of passwords, should be considered when addressing the reasonableness of searching without a warrant. This article advises obtaining a warrant for searching electronic storage devices that contain massive amounts of information accompanied by privacy-protection devices. 27 notes