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Law May Allow Police To Search Smartphones Without Warrant

Publication Date: 
February 19, 2008
Washington Internet Daily
Adam Bender

Professor Robert Weisberg is quoted in Washington Internet Daily discussing the future of searching smart phones such as the iPhone without a warrant:

Searching phones without a warrant may raise privacy red flags, but changing the law will be difficult, Stanford law Professor Robert Weisberg said in an interview. "The search incident to arrest doctrine has proved so expansive that it's going to be hard for the Supreme Court to limit it in the iPhone context," he said. "Even if the justices view this as a problem that needs some kind of special Constitutional solution, the line drawing is going to be really difficult."

The Supreme Court has found limiting the doctrine to searches related to the crime associated with the arrest isn't a "very workable approach," and can raise problems of officer safety, Weisberg said. The officer need not be precise in describing probable cause after the fact, he said.


The court could limit searching to "things the average Joe gets out of a cellphone," Weisberg said. "There are certain things I could figure out pretty easily and certain things that would take a particular technological savvy." But the movement to user-friendliness heralded by the iPhone makes that kind of limit tricky, he said.