Consider the following scenario. The police arrest Sam Suspect and charge him with murdering his wife, Vicky Victim. The arrest is based on a statement from Frank Friend, one of Sam's buddies. According to Frank, Sam told him that he was having an affair and killed Vicky to get her "out of the way." Sam is searched incident to arrest; the search focuses mainly on officer safety, and no weapons are found. When Sam is booked into jail, his property is taken from him for safekeeping. The property includes a cell phone, which the police do not examine in detail at that point. A week later, the police believe that they have identified the woman with whom Sam was having the affair: Polly Paramour. An officer wants to search Sam's cell phone to see how much contact there was between Sam and Polly, whether Sam contacted Polly immediately after the murder, whether Sam sent any incriminating messages to Polly, and the like. Can the officer conduct the search without a warrant? I've been asked variants of this question several times over the past few weeks. I'll give the basic answer today, and in a follow-up post sometime in the next few days, will explore a few wrinkles. The basic answer is yes, the officer can search the phone. I'm assuming for purposes of this answer that the police could have searched the phone incident to arrest. That isn't a completely settled issue, as I discuss in this post, but on the [...]
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