Abstract
In 2014, when the Supreme Court ruled in Riley v. California that police must get a warrant before conducting a search of a cell phone, Chief Justice John Roberts described comparing a search of data on a cell phone to a search of other physical items as “like saying a ride on horseback is materially indistinguishable from a flight to the moon.” A decade later, an overwhelming majority of Americans carry cell phones that contain an ever-expanding set of data showing their habits, routines, and the minutiae of their everyday lives, offering a potential wealth of information to law enforcement conducting criminal investigations.
This information can be accessed through data extraction, whereby forensic tools are used to retrieve a copy of all data stored on a cell phone, including data not easily accessible to the user themselves. Courts are increasingly recognizing that, because of the breadth of potential information easily available from cell phones, warrants to search such devices need to be more limited in scope. Searches based upon the consent exception to the Fourth Amendment’s warrant requirement are, however, frequently the means used to obtain the same, or greater, access to cell phones as a court might grant through a warrant. Consent searches of cell phones and the data they contain have yet to be subject to either the judicial or scholarly examination they deserve.
This Article is the first to identify and provide an in-depth examination of the issues presented by consent searches of cell phones in the data extraction age. These issues involve questions relating to the scope of consent and how and when the data from cell phone extractions is accessed and analyzed. This Article ultimately argues that in a world where the landscape of technology and data storage is continually and rapidly evolving, making it impossible for the average cell phone user to know all the information that can be obtained from their device via data extraction, truly voluntary consent to cell phone searches is impossible. Accordingly, consent searches of cell phones utilizing extraction technology should no longer be permitted under the Fourth Amendment.
Recommended Citation
Jonathan Kerr, Riding on Horseback to the Moon: Consent Searches in the Age of Smartphones and Digital Tracking, 82 Wash. & Lee L. Rev. 491 (2025).Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol82/iss2/3
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