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Authors

Benjamin Wahrer

Abstract

Americans can potentially be arrested for hundreds of nonviolent, minor offenses In fact in 2012, nearly 1 out of every 25 Americans was arrested. Alarmingly, this figure is even higher among youths, with 1 out of every 3 expected to be arrested at least once by the time they turn 23. Once played under arrest, an individual’s expectation of privacy is severely reduced and law enforcement personnel traditionally have broad authority to search and seize anything found on the arrestee’s person, no matter the nature of the arresting crime. For example, it is well-settled law that the arresting officer may search a vehicle, a pack of cigarettes, and even an arrestee’s clothes once booked. In some states, arrestees may even be required to provide a DNA sample: but what about one’s cell phone? Over the past fifteen years, cell phone use has increased drastically with the United States. Moreover, individuals are no longer just using their cell phones to make phone calls. Over 91 percent of American adults have a cell phone, and 63 percent of these individuals use their phones to access the internet, with over 34 percent relying on their phones more than their laptops or desktops to go online. One study has estimated that there are over 326.4 million active wireless devices within the United States, with over 2.19 trillion text messages sent annyally. Modern cell phones are essentially computers. Today, the majority of cell phone owners rely on their phones for e-mail, internet browsing, and messaging, rather than for traditional telephone calls. Additionally, new technological developments have provided individuals with the ability to access their devices remotely. For example, both Apple and Android offer an application which allows users to remotely monitor and access live video and audio streams from the webcams on their computers or tablets from their phones. In light of the vast amounts of private information stored on cell phones, the very real potential for abuse, and constantly evolving technological developments, should the courts still treat cell phones the same as wallets or packs of cigarettes for purposes of searches-incident-to-arrest?

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