The Search of Cell Phones Incident to Arrest

By: Kyle B. Melling, Esq.

In Chimel v. California, 295 U.S. 752 (1969) the United States Supreme Court held that under the Fourth Amendment arresting officers may search a suspect who is under arrest as well as the area in the suspect’s immediate control for purposes of officer safety and to protect against the destruction of evidence. This search was limited to areas in which a suspect might gain possession of a weapon or destructible evidence. In 1973, the Supreme Court clarified that arresting officers were even permitted to open a crumpled pack of cigarettes found in a suspect’s pocket, as part of a “search incident to arrest.” U.S. v. Robinson 414 U.S. 218, (1973).

At the time of the Robinson decision, the physical objects in the area immediately surrounding a suspect were much different than they are today. In 1973, this area may have included the contents of a wallet, notes that an arrestee had in his or her pocket, or, as in the case of Robinson, a cigarette packet holding heroin capsules. Today however, arrestees may possess personal cell phones, laptop computers, tablets, and other electronic storage devices that contain a wealth of information in which a suspect may have a privacy interest. The Chimel decision and its progeny did not provide specific guidance about whether arresting officers may access the data on these electronic storage devices.

The United States Supreme Court recently addressed this issue in Riley v. California, 134 S.Ct. 2473 (2014). The Court held that digital information on a cell phone may not be searched without a warrant, absent exigent circumstances. In the opinion, Chief Justice John Roberts noted that the decision in Robinson was “based on technology nearly inconceivable just a few decades ago.”

Accordingly, since Robinson, the clearly established law still permits the arresting officers to examine the physical device to determine whether the phone is disguised as a weapon, and they may power the cell phone down or remove its battery to prevent remote deletion of data. However, arresting officers may not, absent exigent circumstances, access the data on the cell phone without a warrant.

The Supreme Court did recognize that case-specific exceptions may still justify a warrantless search of a cell phone, but only in a very limited sense. Specifically, the Court cited examples of instances of child abduction or potential bomb threats.

In light of the Court’s decision in Riley, unless there are exigent circumstances, officers that want to search the data from an arrestee’s cell phone must first obtain a search warrant. Failure to do so violates the Fourth Amendment and would also likely strip an officer of qualified immunity, subjecting the officer to liability under 42 U.S.C. §1983.

For questions or more information on “The Search of Cell Phones Incident to Arrest,” contact:


Kyle B. Melling  – MRR Cleveland
Phone: 440.287.8295
Fax: 440.248.8861