How does the Fourth Amendment apply to the contents of technological devices, particularly in the context of inventory searches pursuant to a lawful arrest? In March 2012, headlines such as “Police can now search cell phones without warrant” warned Americans of the possibility of police committing severe violations of privacy by searching our cell phones, which contain troves of personal information, without a warrant. However, famed 7th Circuit Judge Richard Posner wrote the opinion referenced in that headline, which only went so far as to hold that searching a cell phone seized at the time of arrest for that cell phone’s number in order to subpoena the phone records for that particular phone does not violate current Fourth Amendment jurisprudence as a valid warrantless search incident to arrest.
The Supreme Court upheld inventory searches incident to arrest in Illinois v. Lafayette. Although these were initially meant as administrative searches to take inventory of physical articles on a person at the time of incarceration pursuant to arrest, technological advances now allow people to store various forms of important information in their phones and other personal technological devices, many times in the form of messages and “apps.” Further, these devices are likely to be on the person at the time of arrest. Therefore, the physical technological devices are subject to inventory searches. But what about the content and data contained on the devices and the apps?
As technology advances, what is the constitutionality of an inventory search of the contents of a phone or other personal technological device, such as a tablet, at the time of incarceration, pursuant to a lawful arrest? While this type of inventory search would serve to protect the police and government from civil suits if a criminal defendant claimed an app or message was missing after he was incarcerated, it would also deeply infringe on the privacy of that incarcerated individual.
Apps and messages would give the police broad insight into the interests, activities, locations, and acquaintances of the criminal defendant. This is a major violation of privacy, and the incarcerated individual’s interest in maintaining that privacy and Fourth Amendment protection against that type of search would probably outweigh the benefits of protecting the police from a claim arising out of a missing app or message. Further, searching the apps and messages of a personal device would also consume tremendous resources that most police stations and government budgets could not accommodate. Although it seems that the disadvantages of allowing police to conduct an inventory search of the contents of a personal technological device such as a phone or a tablet would outweigh the advantages, this warrantless search pursuant to a lawful arrest would provide police with important evidence of criminal activity of the defendant and his accomplices.
As people, including criminal defendants, continue to store more of their personal information on personal technological devices that are likely to be on their person at the time of arrest and incarceration, legal issues relating to the content of those devices will continue to arise, and courts will need to balance the Constitutional liberties of individual defendants against the government’s interest in investigating crimes and protecting public safety.