What does “search incident to arrest” mean today?

A good article over at the Wall Street Journal on the recent controversy over warrantless searches of laptops was pointed out to me by Venkat Balasubramani. Thanks, Venkat!

The article is worth reading as it discusses the recent cases involving searches of electronic items at the border (based upon a “reasonable suspicion” test), and contrasts that to searches the police can do when you are stopped for another reason. The latter doctrine is called “search incident to arrest” and is meant to allow the police to search the person’s immediate possessions, or “containers,” to search for items that are dangerous, like a gun, or from concealing or destroying evidence. The question is whether the same doctrine will allow the police to search your cell phone, iPod, or laptop.

It’s an untested area of the law, and one which can be debated. Certainly, it is easy to imagine a scenario where a person is able to quickly wipe the memory on the laptop, etc. before a regular warrant could be obtained. The flip side would be that the officer could detain the item for a short period of time until a warrant could be obtained.

Any thoughts? Let me know in the comments.



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