What Do We Do About Those Cell Phones?

Kristen M. Jacobsen (The George Washington University Law School, Students) has posted Let’s Get Physical, Physical: Answering What Constitutes a Search of a Cellphone after Riley Through a ‘Use-Based’ Approach (Criminal Law Bulletin Volume 53, Issue 4, 2017) on SSRN.

Here is the abstract:

Investigating and prosecuting in the twenty-first century requires that the government have clear and workable rules to determine what action constitutes a Fourth Amendment search of a cellphone. The use-based approach provides this guidance. The use-based approach, which will substitute for the physical trespass doctrine, holds that any physical manipulation of the cellphone or any act that requires, or prompts, internal action on the part of the cellphone internally constitutes a Fourth Amendment search. This approach prevents advancements in technology from eradicating Fourth Amendment protections, while the already-established exceptions allow law enforcement the latitude necessary to conduct investigations.

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