04 January 2011

Warantless cellphone search is much ado about nothing

I linked to the article, Court clears warrantless cellphone searches, over at Assault on Privacy.  SFGate has a similar article covering the same decision, entitled Court OKs searches of cell phones without warrant.  I've seen both of these articles posted on Twitter today and the headlines are certainly eye-opening.  The comments (in particular on the SFGate article) complain about the police state, but here the devil is really in the details (which in this case are the articles themselves).

Both articles explain that the search of the cellphone was a search incident to a lawful arrest, which is one of the clearly defined exceptions to the warrant requirement.  Moreover, this isn't some creation of the modern Rehnquist and/or Roberts Court designed to scale back the excesses of the Warren Court.  In fact, this exception is firmly rooted in English common law and has continued to the present.

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