When a person is arrested on a drug charge there are certain things that the police may be able to look at incident to that arrest. These searches generally are done without warrants and are supposed to be for purposes of identifying dangerous weapons or discovering evidence that might be destroyed if they did not find it immediately. The question before many courts now is whether a cell phone can be searched without a warrant.
To understand the logic behind a warrantless search incident to an arrest, consider an individual who is arrested on the street for selling drugs. Once arrested the police may fear that the person is armed and poses a danger to the officers. They may be able to check his coat to see if they can feel a gun. Or check for evidence that they fear the suspect will destroy before they are able to obtain a warrant.
It is more difficult to understand why the police would not generally be able to obtain a search warrant before the search of a cell phone is necessary. Given the general privacy protection a person has in the information and data contained it is difficult to imagine an incidence where access to the cell phone’s data is necessary immediately necessary to protect the safety of the police officers.
Five years ago a cell phone may have contained relevant evidence directly related to its primary purpose as a telephone. It contained information about who you have talked to, when calls were placed and maybe even text messages. But today’s smart phones may contain vastly more information. Facebook messages, videos and even internet browsing history can all be found on a phone. An officer searching a phone may even stumble upon a suspects email correspondence with their spouse or attorney.
Source: CNN “Warrantless cell phone searches spread to more states” Amy Gahran, May 31, 2011