Password protected can a password save a cell phone from a search incident to arrest doctrine
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Password protected can a password save a cell phone from a search incident to arrest doctrine
UNIVERSITY of HOUSTONPublic Law and Legal Theory Series 2010-A-29PASSWORD PROTECTED?CAN A PASSWORD SAVE YOUR CELL PHONE FROM THE SEARCH INCIDENT TO AR Password protected can a password save a cell phone from a search incident to arrest doctrine RREST DOC TRINE?Adam M. GershowitzThe University of Houston-Law CenterThis paper can be downloaded without charge at: The University of Houston Accepted Paper Series IndexThe Social Science Research Network Electronic Paper CollectionPassword Protected?Can a Password Save Your Cell Phone From the Se Password protected can a password save a cell phone from a search incident to arrest doctrine arch Incident to Arrest Doctrine?Adam M. Gershowitz*Over the last few years, dozens of courts have authorized police to conduct warrantless searches oPassword protected can a password save a cell phone from a search incident to arrest doctrine
f cell phones when arresting individuals. Under the so-called search incident to arrest doctrine, police are free to search text messages, call historUNIVERSITY of HOUSTONPublic Law and Legal Theory Series 2010-A-29PASSWORD PROTECTED?CAN A PASSWORD SAVE YOUR CELL PHONE FROM THE SEARCH INCIDENT TO AR Password protected can a password save a cell phone from a search incident to arrest doctrine little protection against cell phone searches, this article explores whether individuals can protect themselves by password protecting their phones. The article concludes, unfortunately, that password protecting a cell phone offers minimal legal protection, lit conducting a search incident to arres Password protected can a password save a cell phone from a search incident to arrest doctrine t, police may attempt to hack or bypass a password. Because cell phones are often found ill arrestees' pockets, police may take the phones to the poliPassword protected can a password save a cell phone from a search incident to arrest doctrine
ce station where computer savvy officers will have the time and technology to Hillock the phone's contents. And if police are themselves unable to decUNIVERSITY of HOUSTONPublic Law and Legal Theory Series 2010-A-29PASSWORD PROTECTED?CAN A PASSWORD SAVE YOUR CELL PHONE FROM THE SEARCH INCIDENT TO AR Password protected can a password save a cell phone from a search incident to arrest doctrine Mug suppressed under the Miranda doctrine or as a Fifth Amendment violation. Ill short, while password protecting a cell phone may make it more challenging for police to find evidence, the password itself offers very little legal protection. Accordingly, legislative or judicial action is needed to Password protected can a password save a cell phone from a search incident to arrest doctrine narrow the search incident to arrest doctrine with respect to cell phones.Over the last decade, cell phone use has exploded. Most Americans now use cePassword protected can a password save a cell phone from a search incident to arrest doctrine
ll phones that contain huge amounts of information such as pictures, documents, music, text messages, and emails.* 1 Not surprisingly, the fact that cUNIVERSITY of HOUSTONPublic Law and Legal Theory Series 2010-A-29PASSWORD PROTECTED?CAN A PASSWORD SAVE YOUR CELL PHONE FROM THE SEARCH INCIDENT TO AR Password protected can a password save a cell phone from a search incident to arrest doctrine convicted of drug dealing, child pornography, and other offenses based on evidence found on their cell phones.2’ Associate Professor of Law, University of Houston Law Center. I am grateful to Susan Brenner, Sandra Guerra Thompson, and George Thomas for helpful discussions and to Dave Brucker and La Password protected can a password save a cell phone from a search incident to arrest doctrine uren Serice for valuable research assistance.1See Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. REV. 27, 41 (2008).2See e.g.,Password protected can a password save a cell phone from a search incident to arrest doctrine
United States V. Fuentes, 2010 WL 724186 (11th Cir. Mar. 3,2010) (rejecting argument to suppress contact information appearing in cell phone of drug dUNIVERSITY of HOUSTONPublic Law and Legal Theory Series 2010-A-29PASSWORD PROTECTED?CAN A PASSWORD SAVE YOUR CELL PHONE FROM THE SEARCH INCIDENT TO AR Password protected can a password save a cell phone from a search incident to arrest doctrine rch incident to arrest doctrine," police can conduct warrantless searches of cell phones when they arrest suspec ts for practically any offense. 3 So long as police have a valid reason to arrest a suspect and find a cell phone on his person or immediately nearby, the search incident to arrest doctri Password protected can a password save a cell phone from a search incident to arrest doctrine ne should permit police to search the arrestee's phono, even if there is no reason to believe the phono contains evidence related to the cures 1.4 * HPassword protected can a password save a cell phone from a search incident to arrest doctrine
ie only significant restriction on the search of cell phones incident to arrest is that the search must bo conducted close in time, that is "contemporUNIVERSITY of HOUSTONPublic Law and Legal Theory Series 2010-A-29PASSWORD PROTECTED?CAN A PASSWORD SAVE YOUR CELL PHONE FROM THE SEARCH INCIDENT TO AR Password protected can a password save a cell phone from a search incident to arrest doctrine cently.6 Over the last few years, more than fort}7 courts have been called upon to assess the constitutionality of searching cell phones incident to arrest. And the vast majority’ of those courts have approved of the practice.7With so little judicial protection against warrantless cell phone searche Password protected can a password save a cell phone from a search incident to arrest doctrine s, this article explores whether individuals can protect themselves by password protecting their phones. Tile value of password protecting the phone dPassword protected can a password save a cell phone from a search incident to arrest doctrine
epends on the answer to three crucial questions. First, when police arrest a suspect and encounter a password-protected phone, can they attempt to breUNIVERSITY of HOUSTONPublic Law and Legal Theory Series 2010-A-29PASSWORD PROTECTED?CAN A PASSWORD SAVE YOUR CELL PHONE FROM THE SEARCH INCIDENT TO AR Password protected can a password save a cell phone from a search incident to arrest doctrine entence him to 420 months' incarceration); Brady V. Gonzalez, 2009 WL 1952774 (ND. Ill. July 2, 2009) (tinding child pornography on cell phone); United States V. VVutie, 612 F. Supp.2d 104 (D. Mass. 2009) (upholding conviction tor intent to distribute crack based on call log intonnation on cell phon Password protected can a password save a cell phone from a search incident to arrest doctrine e); United States V. McCray, 2009 V\’L 29607 (S.D. Ga. Jan. 5, 2009) (denying suppression of child pornography found on cell phone); United States V.Password protected can a password save a cell phone from a search incident to arrest doctrine
Santillan, 571 F. Supp.2d 1093 (D. Ariz. 2008) (relying on cell phone call history to link defendant to a marijuana distribution ring); United Stales UNIVERSITY of HOUSTONPublic Law and Legal Theory Series 2010-A-29PASSWORD PROTECTED?CAN A PASSWORD SAVE YOUR CELL PHONE FROM THE SEARCH INCIDENT TO AR Password protected can a password save a cell phone from a search incident to arrest doctrine ct with others in a drug conspiracy); United Stales V. I emons, 298 s.w.3d 658 (lex Ct. App. 2009) (rejecting effort to suppress pornographic picture of tourteen-veai old girl found on a cell phone); People V. Shepard, 2008 VVI 1821083 (Cal. App. 6 Dist. Nov. 7, 2008) (upholding conviction where pol Password protected can a password save a cell phone from a search incident to arrest doctrine ice office! "looked at text messages in the c ell phone l>e< ause he knew that'c ell phones are used to facilitate drug transactions'"); People V. DiaPassword protected can a password save a cell phone from a search incident to arrest doctrine
z, 81 Cal.RpU.3d 215 (2008) (upholding drug conviction based on a text message staling "6 4 80" which referred lo the sale of six ecslacy pills for 58UNIVERSITY of HOUSTONPublic Law and Legal Theory Series 2010-A-29PASSWORD PROTECTED?CAN A PASSWORD SAVE YOUR CELL PHONE FROM THE SEARCH INCIDENT TO AR Password protected can a password save a cell phone from a search incident to arrest doctrine ases where polic e have searc hed c ell phones inc ident to arrest as well as under the automobile exception, inventory exception and pursuant to consent.7See infni notes 64 and accompanying text.2without a search warrant? Second, how long can police tinker with the phone in an effort to gain acces Password protected can a password save a cell phone from a search incident to arrest doctrine s to its contents? And third, if police cannot crack the password on their own, can they request or even demand that the arrestee turn over the passwoPassword protected can a password save a cell phone from a search incident to arrest doctrine
rd without violating the Mirniuln doctrine or the Fifth Amendment protection against self incrimination?The first question is relatively straightforwaUNIVERSITY of HOUSTONPublic Law and Legal Theory Series 2010-A-29PASSWORD PROTECTED?CAN A PASSWORD SAVE YOUR CELL PHONE FROM THE SEARCH INCIDENT TO AR Password protected can a password save a cell phone from a search incident to arrest doctrine ave regularly upheld searches where police have unlocked or broken into locked glove compartments, briefcases, and even locked safes during searches incident to arrest.10 Accordingly, there IS a strong argument that, incident to a lawful arrest, police should be permitted to unlock the cell phone so Password protected can a password save a cell phone from a search incident to arrest doctrine long as they can figure out the password in a short period of time following arrest. This should be disconcerting to the millions of Americans who usPassword protected can a password save a cell phone from a search incident to arrest doctrine
e simplistic passwords (such as "1234" or their birthday)11 that police can guess. And it should be worrisome to iPhone users whose devices have weak UNIVERSITY of HOUSTONPublic Law and Legal Theory Series 2010-A-29PASSWORD PROTECTED?CAN A PASSWORD SAVE YOUR CELL PHONE FROM THE SEARCH INCIDENT TO AR Password protected can a password save a cell phone from a search incident to arrest doctrine he password - is more complicated. In an "ordinary" search incident to arrest, officers must conduct the search contemporaneous with arrest. Although there is no fixed time limit, courts require such searches to be conducted as soon as is practicable and rarely tolerate lengthy drawn-out searches. T Password protected can a password save a cell phone from a search incident to arrest doctrine his limitation is deceiving in the context of cell phone searches however. Supreme Court precedent provides that when police conduct the search of anPassword protected can a password save a cell phone from a search incident to arrest doctrine
item associated with the person of an arrestee, such as his clothing or wallet, they can take far longer to conduct the search and can comfortably do UNIVERSITY of HOUSTONPublic Law and Legal Theory Series 2010-A-29PASSWORD PROTECTED?CAN A PASSWORD SAVE YOUR CELL PHONE FROM THE SEARCH INCIDENT TO AR Password protected can a password save a cell phone from a search incident to arrest doctrine rgument exists that the phone is associated with the arrestee's person and that the police can take hours to try to break the password, including by using computer hacking software at the police station.The final question - whether police can ask or demand that an arrestee reveal or enter his passwo Password protected can a password save a cell phone from a search incident to arrest doctrine rd - also demonstrates how little protection arresteess Professor Orin Ken- has made a compelling argument that courts should seek a"technology-neutraPassword protected can a password save a cell phone from a search incident to arrest doctrine
l" translation of Fourth Amendment issues to the internet. Sec Orins. Kerr, Applying the Fourth Anieiuhneitt to the Internet, 62 Stan. L. Rev. 1005,10Gọi ngay
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