As the use of new technology and gadgets increase daily, so does unlawful searches of those devices.Warrantless searches conducted outside the judicial process , without prior approval by a judge or magistrate are per se unreasonable.There are some well defined exceptions to the Fourth amendment’s warrant requirement.One of those exceptions is a search incident to a lawful arrest.

Cell phones did not exist when the exclusionary rule came into criminal law jurisprudence.Now most people use a cell instead of a land line and smart phones have all sorts of data and uses. Cell phones may even have data of criminal activity.Recently, the Supreme Court of California in People v.Diaz have addressed the issue of a warrantless search of the text message folder of a cell phone.

The California Supreme Court applied the basic exception that a search incident to a lawful arrest is valid under the Fourth Amendment of the U.S.Constitution.The Court relied on a old case where the police found some heroin in a cigarette pack.It is entirely different to a cell phone.Phone numbers, emails,texts are now commonly stored in a cell phone.A smart phone has more computing power than the computers that ran the Apollo moon mission.The Court went further and found that the cell phone was immediately associated with the defendant’s person.The Court got this one wrong.Right now , a  Michigan man is being prosecuted for hacking into his wife’s email to discover her adultery.He is facing 5 years in prison.Please tell me the difference.Cell phones are private property.

In Tennessee, we might have a different result in that the Tennessee Constitution gives a broader protection under the search and seizure law.A few key points:

  1. There may have been a different result if the cell phone had a password.
  2. IPhones have a slide to unlock.Does the lock give greater expectation of privacy.

I predict this case is just the beginning of  aggressive searches of cell phones in Tennessee.