I repeatedly get asked about the lawfulness of this practice, and would appreciate input or advice:

Officer reasonably suspects person is committing a crime, detains him, IDs and releases pending further investigation. During the temporary detention, officer seizes digital camera from suspect on suspicion it contains photos documenting the violation. It does. Unlawful search? I don't think so, but can't articulate just why.

I have to teach on this soon in the context of cell phones. Search incident to arrest, reasonable expectation of privacy, and exigent circumstances may all be in play I think.

SCOTUS (and many lower courts) really haven't yet made the leap to developing a consistent philosophical approach to whether search of moveable objects found outside a home may be subjected to a warrantless search.

Oddly, a much larger moveable object, the motor vehicle, has long been subject to such an approach, on the theory that is can be moved. Frankly, it is time for the courts to catch up with mobile technology.

Unfortunately, the courts keep getting distracted by the manner in which these smaller, mobile objects can collect and save information, rather than focusing on their mobility and battery-powered status.

In the meantime, get consent or a warrant absent exigent circumstances that can be clearly articulated (e.g., immediate need to get information to protect or capture someone; danger of losing digital information through deletion or loss of power, etc.).

We've had officers ask whether they can search cell phones incident to arrest. Smart phones these days are like pocket computers. Our officers were curious about whether they could check not only call history, but photos, internet searches, etc. on a phone.

Last I heard, there's an iphone app that you can use to remote access your phone and delete information on it. That would seem sufficient grounds to me to search a smart phone immediately . . . made me think of the old "pager" cases, where warrantless searches of pagers were permitted b/c of the likelihood information on the pager would be lost before a warrant could be obtained (i.e., the pager only held so many numbers and the next page might "bump" an old page/information off the pager.)

I would be careful on how far we could go with this. The problem with these phones is that they access information not on the phone. For instance if you have an iPhone and you're checking email it has to access information not on the phone but on another server.

Probably need to go back to the old saying from SCOTUS, "The Fourth Amendment protects people, not places [or the confusing contents of various electronic devices]."

This issue came up for me in the context of a murder investigation. we had text messages from one cell phone to another. did some research on it, case law is not clear but it seems that the current trend is that if the information is viewed within a very short time period after the seizure of the phone then the courts tend not to suppress the evidence, but if the evidence was viewed after too long a period of time, then was an unreasonable search.