When Can the Police Seize a Cell Phone Incident to Arrest, and How Long Can They Keep It?

Riley v. California, 573 U.S. 373 (2014), holds that the contents of a cell phone may not be searched incident to arrest, but allows for the possibility that the phone itself may be seized incident to arrest. This post addresses when such a seizure is permissible and how long it may last. Search and seizure incident to arrest generally. When making an arrest, an officer may search items found “on the arrestee’s person” or “within his immediate control” in order to protect the officer from weapons or other sources of harm and to prevent the destruction of evidence. Chimel v. California, 395 U.S. 752 (1969). Sometimes a search incident to arrest results in an officer seizing an item such as a weapon or evidence of a crime. To my surprise, existing case law does not clearly spell out the legal standard that must be met in order for an officer to seize an item that is uncovered during a search incident to arrest (beyond any temporary seizure necessary to carry out the search). At a minimum, if it is immediately apparent that the item is incriminating, it may be seized as evidence under the plain view doctrine. See Coolidge v. New Hampshire, 403 U.S. 443 (1971) (describing plain view as operating to “supplement the prior justification” for search, such as “search incident to lawful arrest” and allowing a “warrantless seizure . . . where it is immediately apparent to the police that they have evidence before them”). If plain view is [...]