Warrantless Searches of Smart Phones in the 21st Century

Are you saying that you're not trying to write about the state of the law 88 years from now, in the 22nd century? Or distinguishing the situation from the 20th century, when there were no smartphones anyway? How about just "Warrantless Searches of Smartphones"?

Is there a society we don't use everyday? Is technology innovated?

laws have been more and more increasingly insufficient to protect citizens from violations of their rights.

What is the difference between "more and more increasingly" and "increasingly"? This sentence appears to mean "Technological change has outstripped the law's ability to protect citizens' rights." You have used 26 words where 11 would do. That means this draft hasn't been edited by you at all.

One important issue that remains unresolved by courts is whether law enforcement can search through the digital content of a smart phone. I am using the term "smart phone" to mean a cell phone that has increased technological capabilities such as email, software applications, and internet access. Imagine a situation where a man is arrested and his smart phone is confiscated. Under the current law that has not adjusted to the reality of a mobile phone being more than just a telephonic device, the police can now search the phone and its digital content. This can potentially include text messages, emails, bank account numbers and passwords, photos of loved ones, correspondence with lawyers or doctors, and contact information of family and friends. The amount of information we hold fundamentally private can now be found on a device that fits in our pocket. Technology has now put more private information on an individual than ever before. The law must adapt to prevent abuse of this new 21st century reality.

Courts have made exceptions for warrantless searches in two situations: exigent circumstances and searches incident to arrest. The rule for exigent circumstances has been set forth by the Supreme Court as such: “[w]here there are exigent circumstances in which police action literally must be ‘now or never’ to preserve the evidence of the crime, it is reasonable to permit action without prior judicial evaluation.” Exigent circumstances can always exist, and courts may use the exception on a case-by-case analysis.

The more interesting discussion lies with the [[http://en.wikipedia.org/wiki/Search_incident_to_arrest][search incident to arrest doctrine]], and whether it applies to warrantless searches of data within a smart phone. Under the search incident to arrest doctrine, the police can search the person and his immediate “grabbing space” to protect against physical danger and to prevent the destruction of evidence. Most courts have used the doctrine to uphold warrantless searches of cell phone content. The court in United States v. Finley decided not to recognize the distinction between a cell phone carrying digital content and a physical container of evidence. Police had arrested Finley as part of a staged drug bust, and seized his phone during the arrest. When Finley was being questioned, the police looked through his phone and found incriminating text messages and call logs. The court did not recognize a distinction between a cell phone and a closed container, and therefore held that such searches of closed containers fall within the search incident to arrest exception. Since the phone was taken during a proper custodial arrest, the search of the phone was constitutionally valid. More recently, the court in People v. Diaz held that a cell phone seized during an arrest is an object immediately associated with a person, and thus it can be searched incident to arrest. The court determined that the key question was how to characterize the phone. Whether the phone is immediately associated with his person is crucial because “[i]f it was, then the delayed warrantless search was a valid search incident to defendant's lawful custodial arrest. If it was not, then the search, because it was remote in time and place from the arrest, cannot be justified as incident to that arrest unless an exigency existed.” As these cases illustrate, at least some courts have been willing to allow warrantless searches of cell phones incident to arrest.

Because it has not been edited, this draft is blowsy. It says half as much as can be put in the space. It interferes with its own progress the way you would be hampered if you filled your apartment with junk until you could barely walk the halls. Analytically, you never explain why the category "computer" is more important than the category "stuff you had in your pockets when you were arrested." You do not review the law of search incident to arrest very comprehensively, citing a single "closed-container" case as though that were the only point in the space, and as though a box and a briefcase are always the same, and printed papers are always the same as white powders. Your discussion of the California situation is limited in the end to the use of an editorial adverb. Whether Brown's veto is "fortunate" or "unfortunate" is probably less important than the stated rationale you punt on discussing, or the political and industrial context you could have summoned to enlighten the reader as to other reasons why he cast it.

I don't want to perform the first edit here. That prevents you from learning how to do it. Cut the existing material by 50% and put the analysis in that the junk currently forces you to leave out. The we'll be cooking with gas.