From Horseback to the Moon and Back: Comparative Limits on Police Searches of Smartphones upon Arrest
71 Pages Posted: 22 Apr 2020
Date Written: March 13, 2020
Abstract
The search of a smartphone, by the police, in connection with an arrest, carries the potential to intrude into the very core of an arrestee’s private life. Indeed, such a search has been compared to providing a “window[] to our inner private lives,” including aspects of our lives completely disconnected from the reasons for the arrest. In recent years, the supreme courts of the United States, Canada, and the Netherlands (as well as Dutch legislators) have handed down rules about how, and whether, police may search an arrestee’s smartphone upon arrest without first obtaining a warrant or other court order. These responses can be categorized as either container-based or content-based approaches, depending on whether the court (or legislature) focuses on protecting the privacy-sensitive content (i.e., personal information) as such or, rather, the container (i.e., the smartphone) as a proxy for protecting the privacy-sensitive content (typically) contained within the device. After analyzing and comparing the approaches adopted in each of these three countries, we argue that both approaches have advantages and disadvantages, and we suggest a combination of the two as a fruitful path forward, balancing the important privacy and law enforcement interests at stake.
Keywords: search and seizure, search incident to arrest, warrantless search, smartphones, computers, Fourth Amendment, privacy
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