In California, it is legal for police to search an arrestee's cell phone without a warrant -- ever since a January decision by the California Supreme Court.
California civil rights advocates are pushing back. The Electronic Frontier Foundation is supporting California Assembly Bill SB 914, which would require police in that state to get a warrant before searching an arrestee's cell phone.
EFF also recently filed an amicus brief in the Oregon case of James Tyler Nix, a criminal suspect who was arrested and placed in a holding cell.
According to EFF, "Forty minutes after the arrest, without a warrant, an investigator fished through the suspect's cell phone looking for evidence related to his alleged crime. Law enforcement officials claim they didn't need a warrant because the search was 'incident to arrest' -- an exception to the warrant requirement intended to allow officers to perform a search for weapons or to prevent evidence from being destroyed in exigent circumstances."
EFF senior staff attorney Marcia Hofmann contended: "This is an empty excuse from the police -- the suspect was in custody and unable to destroy evidence on his cell phone."
Meanwhile, in Florida, an appellate court decision upheld warrantless cell phone searches, defining the phone as a kind of "container." This case may be considered by the Florida Supreme Court.
A similar Georgia appellate court decision upheld a warrantless search of a cell phone found in an arrestee's car (not on her person).
In contrast, the Ohio Supreme Court has barred warrantless cell phone searches.
The Michigan State Police (MSP) use data extraction devices to pull data off arrestee's smartphones. This is done only with a warrant, according to a state police press release.