Identification of the article
The article selected for critique is titled “searching cell phones seized incident to arrest”. The author of this eight-page article is Wesley Clerk, who is a senior attorney in the Domestic Law Section, Office of Chief Counsel, DEA. It was first published online by FBI Law Enforcement Bulletin on February 2009, and was adopted from Criminal Justice Periodicals pg. 25. A complete reference for the article is available in the reference section of this critique.
Summary
The first point that the author makes is that the validity of search of cellular phone is not subject to the time and place of arrest so long as the administration process is going on. This point was raised in Finley case in which the defendant was arrested and his phone was search following the issue of a warrant. The court failed to explain the overwriting of the existing messages by incoming the incoming messages.
The second point is that the current law does not uphold search prior to search warrant. This point was expressed in Pina case in which the defendant’s phone was seized after booking. The search was passed to be incident to arrest. This case overlooked the issue of time and distance lapse from the place of arrest to booking. The ruling was based on the argument that the phone numbers in the instant case were obtain after a short time lapse. This helps us to understand the significance of the time lapse between arrest and the search, in determining the validity of the information accessed from the defendant’s phone.
The third point Clark made is that, the legitimacy of warrantless search incident to arrest. This point is supported by the conviction that cell phone are devices which are subject to change which may lead to deletion or loss of calls from the phone. The court judgment suggests that the dynamic characteristics of cell phone permit warrantless search.
The fourth point concerns search conducted while booking the arrestee. This point is expressed in a Park case, where the judge supposes that a search be conducted 11/2 hours prior to booking is inappropriate, based on the Fourth Amendment. Another issue that emerged is whether to regard a phone under search of person or search of possession.
The fifth point that emerged from this article was that the Fourth Amendment regards cell phones as ‘possession within an arrestee’s immediate control.’ And once the effect is abolished from the arrestees direct control evidence will not be jeopardized.
My critique
The author employed descriptive qualitative methodology for this survey of various court cases in the United States. The respective court proceeding were highlighted and evaluated against existing policies. The researcher clearly elucidated the issues surrounding the search and seizure policy. This research brings to limelight the loopholes in the law enforcement search and seizure incident to arrest. One concern is that the researcher did not indicate if the phone was switched of after seizure, a factor which I think is significant because it overrules, the dangers of messages overwriting. Also, switching off the phone, allows the investigating agent to process a search warrant.
The tangible points raised by the author are well developed in various government policies. However, it seems that these policies contradict each other at some point. Particularly, the Fourth Amendment of the United States Constitution defends every person’s right to privacy especially through prohibition of baseless intrusion into personal property. However, in circumstances pertaining legal matters, the court and legislative systems allows investigating agent to interfere with the individual Fourth Amendments privileges (Harper, 2004).
The principal paradigm in any discipline can literally overcome any other consideration. Thus, a researcher should approach the problem from different aspect in order to achieve solutions (Cooper, Walsh, & Ellis, 2010). This echoes the need for researchers to think outside the search and seizure incident to arrest laws and focus on reforms.
The most another issue arising from cellular phone search is the immediacy of the search. Based on the arguments of Clark (2009), the search of phone at moment of seizure was inappropriate since the legislature do not advocate the seizing of the phone prior to search warrant. However, this conviction was unfounded since cell phones are items that are liable to alterations without any signals. Contacts can be deliberately deleted as well as the record of the received or dialed calls relevance to the allegation can be lost (Clark, 2009). This conception serves to support the seizing and search of the phone at the moment of arrest logical. Thus because of the utility and technological limitation of the phone, it is expedient for investigating agents to perform an urgent search of the cellular phone prior to acquisition of search warrant (Clark, 2009).
Reference List
Clark, W. M. (2009). Searching cell phones seized incident to arrest. FBI Law Enforcement Bulletin, 78(2).
Cooper, J. A., Walsh, A., & Ellis, L. (2010). Is criminology moving toward a paradigm shift? Evidence from a survey of the American Society of Criminology. Journal of Criminal Justice Education, 21(3), 332-347
Harper, E. (2004). Search and seizure in 2003-04. Web.