Police Officers Can Search Your iPhone Following Arrest For A Traffic Violation

from the fourth-amendment dept

Adam Gershowitz writes "I am a criminal law professor from Houston, Texas and I have recently finished an article about the ability of police officers to search the contents of a person’s iPhone at a traffic stop. In brief, under what is referred to as the “search incident to arrest doctrine,” police can search through any container found on the body of a person who has been arrested. It does not matter that the arrest was for running a stop sign, or speeding, or some other seemingly minor traffic infraction. Regardless of the reason for the arrest, police can search through every container on the person’s body, even if the police have no suspicion that there is anything illegal in it. A few courts have concluded that this doctrine permits police to search text messages found on cell phones. My article explores the circumstances under which police can now search not only text messages, but also the email, pictures, movies, calendar entries, and internet browsing history found on iPhones and similar devices — even if the police have no suspicion that there is anything illegal on the iPhone. In short, the article explores ways in which the police can search through the thousands of pages of data on individuals’ wireless technology even if there is no probable cause or other suspicion of illegal activity."

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Comments on “Police Officers Can Search Your iPhone Following Arrest For A Traffic Violation”

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Chris says:

Re: arrest

If you live where I live in the outskirts of Las Vegas they can arrest you for anything..I was pulled over because the cop said I was speeding..(45 in a 45 zone is speeding I guess) Then they checked all my registration and insurance information and found nothing. Then I was forced to get out and stand in front of their cruiser and then was told to do several sobriety tests. Passed all 3 then they made me sit in the curb until they left..what a night..

Nipponese says:

Re: Re:

Why don’t you read the article before you make a silly comment like that. As it clearly states in the article, it is not just limited to iPhones, but any other similar devices which I believe would include Crackberrys, smartphones, and probably any phone that can text message and/or receive emails with.

ohnopirates says:

@2: exactly. This sounds like a fairly alarmist paper, although it doesn’t load so who knows!

C’mon techdirt, you can do better… sometimes.

He essentially says – if you are arrested, you can be searched. The exploration of where the boundaries of this search are, particularly as we continue to carry more historical and personal data on our person is an interesting matter – but to try to draw attention to it by saying “They’ll do it to you at a stop light!” is ridiculous.
And I hate governmental authority, this is just stupid.

Sarojin says:

Re: Re: Passwords

Except that it doesn’t matter when they can get the same info from the telecoms and service providers without a warrant and with retroactive immunity.

Don’t think it matters, and you have nothing to hide? What happens when a mistake is made, or someone “under suspicion” dials your number instead of the number they were trying to…now you and everyone you call is under suspicion too.

But of course no one in law enforcement would EVER utilize the powers they have for political, religious, or any other than completely legitimate purposes, right?

ekc says:

Headline grabber?

Now the ability of the police to go through any container on a person during a routine traffic stop seems like something that is an important issue that people should know about, but singularly pointing to their ability to check people’s iphone seems like it screams of trying to get attention by mentioning a currently hot popular product, not too much different from a headline saying that children might be able to view porn on an iphone. If the police can search an iphone then they could obviously search through any other cell phone they found on somebody. Now I will readily admit that the browsing ability and ease of using an iphone may make it easier for the police to do such a search on an iphone as opposed to, say a Moto RAZR, and that a person using an iphone may have a more extensive browser history, but they can still do essentially the same stuff. As has been noted before, the iphone didn’t contain much new stuff, it just put together the old things in a more intuitive way. The headline just seems like a cheap scream for attention to me. Would the police also be able to search a Zune that they found on someone? Maybe he will address that issue when the Zune becomes a little more popular. I thought Techdirt was above giving play to stories such as that without putting them through some critical analysis first.

petro says:

Re: Headline grabber?

Well, since the iphone is a device that combines PDA and MP3 player and phone and… all those other functions, it’s worth mentioning it in this context – by searching this specific device, the police would have wide and open access to a very large amount of personal information. Not many other devices store the variety of things that the iphone does.

ben says:

Re: Awww

Look, alot of people are pissy about their privacy… Its bull that they could do that, and what if you had personal information… would you like people to just be able to read it? or what if you liked gay porn? would you like people to see it? or what if anything? ITS JUST BULLSHIT! So shut up alright? People like their privacy and its intruding to be able to do shit like that, not neccesary at all.

Rick says:

It's True

I’ve had it happen to me. You don’t even need to be arrested. If the police stop you for any reason, for their ‘safety’ they are allowed to search you, if they feel the need. Apparently, anything you have ON or NEAR you is included in this search.

When I emptied my pockets of a lighter and a cell phone, the officer picked up the phone and browsed my call history. I asked why and was told there had been drug activity in the area and he was looking for known drug dealer phone numbers. If he had found one, he would have had probable cause to search the car too.

Leave the phone in the CAR and they cannot search it or the car without your consent. Password protect your phone too. If they really want the password they’ll need a warrant. If you don’t want to give them the password with a warrant, pull a Ronald Reagan/Alberto Gonzales and say, “I don’t recall.” They can’t proove otherwise, can they? 🙂

Charlie Potatoes (profile) says:

In Texas,as in most states, if you carry an in-state driver’s license, you can be taken to jail for any offense with the exception of speeding, for which they must give you ten days to appear. Non residents do not have even that exception. So the officer can follow you until you fail to signal a lane change, arrest you, and then toss you and car, including your iphone or laptop. And none of you see a problem with this? Duh.

Shane C says:

Automatic download

I keep reiterating this every time I see a similar article. I wonder when “automatically downloading the contents of the device, so a third party technical consultant can review it” will become standard?

If it becomes expected to have all of your personal belongings (physical and data) searched in certain situations then it’s going to be expected that a officer “on the beat” can’t do that personally. He could however carry a device with a common interface that would duplicate all the data for someone else to review.

When that happens the big question will be “who has access to the data,” and “what happens to it when they are done?”

Being the capitalistic person I am, I can see a great opportunity for a new business. Now if I could just purge out those pesky morals…


James says:

Re: Automatic download

Shane you’re right you do see a business opportunity.. a market where a smart phone w/encrypted data and biometric scanner are common place to prevent prying eyes, but guess what…

…traffic cops and cities will simply get their councils/legislatures to pass laws that say you will unencrypt/make available that data for them upon request or relinquish your freedom (ie jail)…

don’t believe it? yeh well, if you ever get pulled over under suspect of driving under the influence (regardless if you actually are) they can force a breathilizer (in most states) or take you to jail… i don’t see this as much different. its called “guilty until proven innocent”.

TheDock22 says:

Re: Re: Automatic download

…traffic cops and cities will simply get their councils/legislatures to pass laws that say you will unencrypt/make available that data for them upon request or relinquish your freedom (ie jail)…

Wow, if this isn’t a conspiracy theory then I have no idea what is. Cops do NOT go out of their way to incriminate innocent people.

don’t believe it? yeh well, if you ever get pulled over under suspect of driving under the influence (regardless if you actually are) they can force a breathilizer (in most states) or take you to jail… i don’t see this as much different. its called “guilty until proven innocent”.

First off, they can not force a breathalyser on you. It is your option in every state to ask for a field test rather than a breathalyser. Second of all, if they do stop you and you fail either test, THEN they take you to jail. They don’t just cart you off and ask questions later.

Third, passwords people. They were invented for a reason.

matt says:

Re: Re: Re: Automatic download

well, even if you do refuse, and they cart you off to jail. you are forced to take a breathalyzer at the precinct, or refuse, refusal is oftentimes worse than blowing over the limit, as your license is revoked automatically for one year.

in new york anyway.

also you will probably be convicted anyway as its an admission of guilt.

Foohaus says:

The authority to conduct this kind of search would simply not apply during a typical “stop and frisk” or traffic stop. In many states, simple traffic offenses (and other misdemenors) are not grounds for a warrantless arrest, so the ability to search incident would not be allowed.

For example, the case involving the crumpled up cigarrette pack would have ended up differently if the person was originally patted down during a stop and frisk. Under those circumstances, absent PC to believe that the lump in his pocket was contraband or a weapon (the “plain feel” doctrine), they would not have been permitted to search in the pocket, much less open the package up.

The article is well written and definitely brings up an interesting topic–one which the Court will hopefully address in the near future. I’m no “privoacy advocate,” but I do think that we should always be critical of our government’s ability to conduct unfettered searches of our person, homes and possessions.

The Man says:

not constitutional

First, traffic infraction is just that, an infracton not an arrestable offence. An officer can search your person and anywhere in your reach for weapons. Incedental to that search for weapons, if he finds anything illegal, it has been found leagally and will hold up in court. In a car this is different than a house. Once you are pulled out of a car, the officer can not search it without permission or during an “Inventory” search while towing the car after your arrest. For a traffic infraction when he has probably cause to pull you out of the vehicle (this could be many reasons including proximity to passing traffic) he can search your person for weapons.

This was a long way to say this article was completely false. Any evidence gathered by an officer searching contents of a phone during a traffic violation will be tossed out of court. If you give the officer permission (which just about everyone does eventhough they say they never would) all info is fair game.

Now if the officer found dope he is then able to search items realted to dope sales. For instance a pay/owe sheet is very common, so any papers or tablets are fair game. In the electronic age, a PDA would also work. And yes phone number of drug dealears are evidence to.

Techie says:

Police and Tech

I don’t really think that the police will know what the hell they are doing when they or if they try to go through a cell phones history. You have to have a high tech phone to know how to use one and from all the police I have seen around my town. None of them know how to even use their phones the correct way.

I wouldn’t worry about it. Just lock your phone if you are worried about them seeing your drug deals. Other than that, if they screw your phone up, you can be the next big article on Techdirt. Police deletes emergency information from a routine traffic stop. LOL

GHynson (profile) says:

Police State

This all comes down to the Cop stopping you.
Most Cops don’t give a damn what your doing when your stopped for minor violations.
There’s those few Cops out there that have that God syndrome that will do this to you, but as long as you kiss @$$, they usually leave you alone.
I say, instead of packing an iPhone, Pack a 9,
That way you can pop a cap in his @$$.

Anonymous Coward says:

My phone is password protected. What would keep me from refusing to answer any questions until my lawyer was present? Answer? None. Did I lose any privacy? I don’t think so.

Oh, and just where do you have to live to get arrested for running a red light? What kind of dirtball do you have to be to get arrested for that?

That being said, a friend of mine told me that you should never answer questions from a cop or a prosecutor without having a lawyer present. More people talk their way into getting arrested than not. My friend was a cop. Not bad advise.

John says:

Cellphones - Policemens best friend.

I use to work as IT for a city and worked with some officers on the City’s Gang Unit.

Video phones and Picture phones are VERY important to Gang Units as they often times contain evidence of illegal activity.

Many gang fights, vandilism and thefts have been solved simply by the evidence contained on cellphones.

Cellphones are more and more becoming an important tool in the Police officers arsenal.

I don’t do anything illegal, so they can search my phone, my car, my house, my trash, etc. — I have nothing to fear.

Remember, Privacy is a more recent invention of society. When communities were much smaller, you had very little privacy. Everyone knew what everyone.
Multi generations lived under one roof, often times in homesteads… it is only recently, maybe in he last hundred or so years that people have privacy.

BTR1701 (profile) says:

Re: Cellphones - Policemens best friend.

> Privacy is a more recent invention of society. it is only recently,
> maybe in he last hundred or so years that people have privacy.

That’s what is commonly known as progress.

The fact that a freedom is relatively recent hardly diminishes that freedom. The emancipation of blacks and the ability of women to vote are also relatively recent (historically speaking). That doesn’t make those freedoms any less valuable.

Anonymous Coward says:

Re: Cellphones - Policemens best friend.

“I don’t do anything illegal, so they can search my phone, my car, my house, my trash, etc. — I have nothing to fear”

What’s your full name?
How many sexual partners have you had?
Are you homosexual?
Have you ever had homosexual thoughts/tendancies?
How often do you masturbate?

Nothing to fear, right?

Please explain what privacy has to do with fear or illegal activity.

dazcon5 says:


First of all, if you just act like a decent human and comply with an officers REASONABLE request, you’ll get your ticket and be on your way. If you act like a jackass you give the cop reason to F*** with you. If you act like a criminal the cop will treat you as such. The cops can’t roll up to a car and politely ask “excuse me kind sir would you happen to be a criminal?” they would wind up dead. Give the cops a break folks, they take sh!t all day.

Erick says:

Wow, some of you people.

“I don’t do anything illegal, so they can search my phone, my car, my house, my trash, etc. — I have nothing to fear.”

get out of the US now. you do not belong here.

“…traffic cops and cities will simply get their councils/legislatures to pass laws that say you will unencrypt/make available that data for them upon request or relinquish your freedom (ie jail)…”

I think there was just something recently (within the week) where a judge ruled that the court could not force one to give up an encryption key/password. don’t know at what level that was though.

And as for the DUI/Breathalyzer thing, they can’t force you to take a breathalyzer. I think it’s called “implied consent” in most states, where when you sign the forms to get your DL you say you will consent to a breathalyzer when asked. Don’t consent, you’re violating the terms of your DL and it gets taken away.

“I say, instead of packing an iPhone, Pack a 9,
That way you can pop a cap in his @$$.”

No, TC Encore. Single shot pistol but it comes in many different rifle-cartridge chamberings. .30-06 will sail right through a ballistic vest.

cweber says:

Texas only?

Two points:
1. This article is based on Texas laws. One would hope that in other states saner attitudes are customary. Does anyone know?
2. If a cop pulls you over in Texas, take your cell out of your pocket and place it somewhere else, hopefully out of direct reach from you, BEFORE you come to a stop. That way they need your consent or a search warrant to get at the contents of your phone, which is how it should be.

Hudson Barton (user link) says:

Other Constitutional rights

The article suggests that iphones, smart phones and similar devices that can not be customized to encrypt all or most of the “hard drive” should be used “at your own risk”.

It is not a reason however to be fearful. Encryption is available to all of us, and has already been declared an “arm” (weapon) that one might use for self-defense. Personally, I don’t think I even want a portable device that can’t be “armed”.

Note: While it is our 4th amendment right to not be subjected to unwarranted search and seizure, it is our 2nd Amendment right to be armed with encryption, and it is our 5th amendment right to not disclose the password. The wise citizen may well decide not squander any of his rights.

Deputy says:

ACLU scare tactics

That is all this is.

This is true “subject to arrest”. I’ve never seen anyone “arrested” for speeding or running a stop sign (unless it was in the course of evading arrest for some other crime). If a person is arrested for a crime, say DUI for example, then subject to this arrest, his vehicle and person can be searched.

This is normally done to locate potential weapons, drugs, and other illegal substances. If in the course of this search, other things are found, such as child pornography or bomb making tools or meth-lab items, then more charges are added to the subject.

For any search, the officer must be able to articulate the reason for the search, or the search is invalid.

The only way I could see someone’s PDA searched due to traffic arrest would be something like the following:

Mr. Smith was stopped for suspicion of DUI. After failing his field sobriety test, he was subsequently arrested and his person and car searched for possible drug paraphernalia. During the course of this search, several photographs meeting the definitions of “Child Pornography” were discovered. Subsequent to this find, a computer, digital camera, and PDA were also confescated and sent to the FBI lab to be searched for related material.

No real peace officer is going to search your PDA at road side. If he does, anything found is no longer admissible, because accessing a file changes the date-time-stamp of the file.

Electronic devices discovered during a search that are deemed provitave to the crime in question are always confiscated “as is” and sent to Law Enforcement computer labs for “searching”.

Anonymous Coward says:

Keith, no, I think they are just moonbats. Don’t give up the passcode and ask for a lawyer.

Is that all that difficult?

As for the ones talking about shooting cops, personally, you don’t deserve any rights. You have them, but you sure as hell don’t deserve them. Those are the dirtballs that deserve the redneck cop coming up to them and beating the shit out of them.

another mike says:

encryption and the 5th

Erick, you’re thinking about the case in Vermont where a Canadian worker (US resident) crossed the border with kiddie stuff on his laptop. The vids and stuff were on an encrypted drive which he initally revealed to authorities (that’s how they knew to arrest him) then pulled an “I don’t recall that” after they dumped the data and tried to access it again. The judge has ruled that revealing his password would violate his 5th amendment rights. The feds are appealing the decision.

Clueby4 says:

Creepy Pigs

I’m sorry but they’re exploiting the dubious “search for weapons” search scam. The search is unreasonable regardless of any pedantic rationalizations they can cook up.

“Wow, if this isn’t a conspiracy theory then I have no idea what is. Cops do NOT go out of their way to incriminate innocent people.”

Your perception of reality is pretty flawed my little friend. Cops serve only to generate review in most capacities, as far as protecting and serving goes it’s really only theater, based on your obtuse analysis of their purpose, it appears that they’re putting on a good show.

krsd says:

Re: Creepy Pigs

That they call a electronic device a container is silly. That would be like calling a diary a container because it contains information. Granted, if the diary is locked it would make more sense that it be considered private than a regular book, but either way as Clueby4 pointed out this is supposed to be a search for weapons for the officer’s safety, and short of the cell phone having a taser mode I don’t see where the officer’s protection is being served by this sort of search.

Anonymous Coward says:

What’s your full name? (ummmm, the cop has a right to identify you, you have a problem with that? Wouldn’t he just ask to see your drivers license?)

How many sexual partners have you had? (You keep that in your phone? Hell, I would need a extra storage card for that)

Are you homosexual? (No, not that there is anything wrong with that)

Have you ever had homosexual thoughts/tendancies? (for that they could just search your public blog)

How often do you masturbate? (I don’t use my phone for that, so think thats safe)

My advise to you if you live in an area where cops care or have the time to ask these questions? Move.

Here is a question, I see cops every day when I go to work in both New Jersey and NYC. Sometimes I say hi to them, never had a problem, never received rude treatement. What kind of scumbag must you be where cops go out of the way to give you a hard time? What, are NYC and NJ cops just especially nice?

Hopeless Charm says:

Constitutional Fundamentals

Run of the mill traffic stop does not permit officers to search ANYTHING including your cellie – 4th Amendment presides. Any searching they’d do would be court tossed.

And how have breathylyzers and field tests not been thrown out as 5th Amendment violations against your right NOT to offer evidence against yourself ?! Seems to me the only evidence for drunken driving against someone should be officer observation of erratic driving or worse. [But this isn’t the main topic here so enough of that.]

taterz says:



The truth says:

You make me sick. Privacy is not a recent trend, as a matter of fact, the american revolution was caused by the writs of assistance that police of the time used to warrantly arrest and search people’s homes and persons. Perhaps befor you make a claim such as “privacy is a recent fad”, you should read a book or learn something. Ignorance like that is dangerous, and forget about your rights, and see how soon they dissapear. Just say no to warrantless searches, regardless of whether “You don’t do anything illeagal”, it is not only your right, but your duty as a citizen to deny warrantless searches. People have died for your freedom, and allowing a warrantless search makes their blood worth less than nothing. It doesn’t matter whether it’s convinient for you or not, I’m sure a musket ball to the throat was quite an inconvienience for the men who died for your precious “freedom”. Men more noble than you will ever founded this country on privacy. What are the amendements, but a guarantee of your privacy? The privacy of saying what you want, praying to who you want, and being secure of the privacy of your personal effects against unreasonable searches and seizures. Apathy corrodes from within, and smart fools lead many ignorant people away from the truth. Wake up America

Nation says:

First off the officer can search anywhere in your immediate reach. That is for the purpose of in case the person reaches for a weapon. If they do this and find an Iphone, it is not illegal contraband, it will not hurt the officer, and there is no reason to check it. That would get thrown out in court, anything on the phone, unless they found some other things in the car, like lots of money and drugs. Then it would seem checking the phone is reasonable.

In Trouble says:

arrest without warrant

In Texas an officer can arrest you without warrant for just about any crime you commit in his presence, except speeding. After an arrest they search your car – called an inventory – (its meant to “protect” your property) they take your phone (any phone) The forensic staff of the police department do not use the phone’s interface to examine it, they have software that will “dump” the contents of the phone to a computer. This can happen without using a password. In fact this is all happening to me right now.

infestedtassadar says:

strip search?

for those of you who feel that police can search whatever, whenever because you “have nothing to hide,” let me leave you with this.

I hope you dont mind having a regular, detailed search, causing you to be late for work a couple hours every day, im sure your boss wont mind. and what i mean by detailed, well lets just say it involves those little white medical gloves. now bend over and cough or are you a terrorist?

hope you dont mind swat throwing a few flash bangs in through your windows and kicking in your door at 3am, do you? or are you a narc dealer?

show me a business that has no secrets and i’ll show you a business not worth profit. show me a person with nothing to hide and ill show you a prisoner, a tyrant’s slave or a man otherwise denied freedom.

Dave says:

I got stopped by the police because I missed to break at the stop sign

I have a question. I recently just moved to Houston and just got stopped by the police officer because I didn’t noticed a stop sign early enough to stop because it was very dark. He gave me a citation but also ask for my phone number which I gave to him. I want to know if I am required (regarding the law) to give my phone number to the police or I can still be fine if I declined to do so…….. Thanks

Limo Driver (profile) says:

Arrested - cops took cell phone, flashlight and DL

I was parked in a parking lot getting ready to clean the car one evening after dropping off a rider when I was swarmed by Culver City police wanting to know who the rider was.
One of the Officers reached into the TCP registered Commercial vehicle, unlocked and open my door asking me to come outside as they just wanted to ‘ talk ‘ after noting that he felt threated by the flashlight I had in the passenger seat.
I was handcuffed and put into one of the 7 culver city police cars, not read my rights, they swarmed the vehicle, took my wallet, flashlight, cell phone. then had a k9 dog run all through the car, took me to jail where I was booked for a DUV?
The next morning I was given my belongings and immediately got back to the car ( thankfully not impounded as I was parked in a private parking lot) I noticed my Drivers License and Cell Phone and flashlight were not returned and headed straight back to Culver City Police where I was told that I wouldn’t be getting my things back due to the controlled substance they found in the backseat of the vehicle.
Now I’m left with no job, having to deal with setting up an administrative hearing through the California dept. of Motor Vehicle’s. and was never given a breathelizer, or any other type of test to prove I was not under the influence. ( while in the parking lot, an officer said he noticed I made an illegal turn some time ago before finding me in the parking lot – a likely story)

Now out of work and having to go to court for a DUI, what can I do? I want my personal belongings back as a result of this illegal search and seizure/gross misconduct/negligence by Culver City Police ( I had a fall a week earlier and am to go into surgery to correct an injury sustained by my left wrist – now made worse by Police refusal to loosen the cuffs ( I did NOT consent to the ‘ illegal ‘ search and seizure – a right I’m supposed to have driving a commercial private limo (In California – TCP registered commercial limo’s ( ( Transportation Charter Party class Commercial drivers ) are Not responsible for anything in the vehicle and can refuse the Police the right to search the vehicle. I was alone and the some 14 officers’ in total who arrived on the scene ( guess they were bored that night) couldn’t care less. I asked the officers for their names and personel numbes and was told I’d be provided with them,… I was lied to about ” coming outside to talk” I was lied to by Culver City Police that I wasn’t being arrested as they put the cuffs on, I was lied to when I was told by the Supervisor on duty that I would be given the names and personel numbers of the officers invovled…
and I’m sure they’ve gone through my emails, bank, family, friends and private business contacts ( some of whom are celebrity clientele) and Yes, I also drive for UBER.
I don’t like that my tax dollars pay officers to do MORE than to ‘ Serve and Protect’, have the ability to take my job away from me on the spot, steamroll over my civil and constitutional rights as an american citizen who served 2 tours of desert storm to fight for the rights that COPS simpoly don’t respect….

this might go high profile – any criminal lawyers welcome to contact if UBER doesn’t come forth with legal.

Tracy livingston says:

Police and TechREI – Shop Outdoor Gear by Recreational Equipment, Inc https://appsto.re/us/Rlyiy.i

My local police dept in Greenwood SC have been hacking my I phone 2 years and 4 months they are too lazy to do their own job and too will be judged when the time comes can see detrimental actions against citizens would be a reason, but they use infomants to glorify their jobs, They aren’t doing anything . The law enforcement should worry about other things than users. Furthermore my iPhone is in my mothers name and therefore they aren’t searching the right lady’s phone. My mom has and never will use drugs but will protect her children . This isn’t a big town why can’t we get back to the basics like Mayberry RFD

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