Here’s a question for the Fourth Amendment nerds in the VC readership: How does Kentucky v. King apply to searches of computers? Specifically, imagine the police lawfully seize a computer and they wish to search it. Ordinarily they need a warrant to search the computer. The question is, can the police turn on the computer and then search the computer without a warrant on the ground that some of the information it contains will be either lost or potentially altered as a result of the computer being on? Recall the basic reasoning of King:
[W]arrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement. Therefore, the answer to the question before us is that the exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same sense. Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.
So let’s apply that principle to the search of a cell phone. Most modern smart phones enable remote wiping of the cell phone: If the phone is on and connected to the network, the user can send a command that deletes all the information from the phone remotely. Let’s assume that there is reason to think that a user of a phone may try to use that service if his phone is on. Can the police turn on the phone in order to rely on the possibility of the remote wipe to justify a warrantless search of the phone? Under King, I would think the issue is whether merely turning on the phone, without more, constitutes a “unreasonable search” or “unreasonable seizure” that itself violates the Fourth Amendment. But that’s a rather metaphysical question. Any thoughts on how King applies here?