If you are arrested by the police, they have the right to search you, your
pockets, and anything that is immediately within your control, such as
a wallet, backpack, or purse. But, what about your iPhone or Android,
can they search that? Can the police scroll through your contacts, your
texts, your photos, and the rest of the data contained on your phone without
Historically, the U.S. Supreme Court has established the various rules
pertaining to the people’s search and seizure rights under the
Fourth Amendment, which reads, “The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated.”
Since smartphone technology advanced at a rapid rate, it took years before
the law offered clarity on the matter. It wasn’t until June of 2014,
when the U.S. Supreme Court ruled that in most cases, police officers
need a warrant before they can search an arrestee’s cellphone.
Court: Cellphones Are Not Typical Containers
Suppose you were arrested here in Tampa, or anywhere else in Hillsborough
County. Once you were officially arrested, the arresting officers would
be able to search you, and any “containers” that were within
your immediate control. A “container” could be a wallet, a
purse, grocery bags, a box, a fanny pack, or a duffle bag – you
get the picture. Even a pack of cigarettes could classify as a container.
However, the Supreme Court reasoned that a cellphone is not like any other
container. Sure, a cigarette pack can contain small bags of cocaine, a
few hits of LSD, or a small wad of cash, but that type of physical evidence
is very different than the digital evidence contained on a cellphone.
Today’s modern cellphones contain digital evidence that is “highly
personal” in nature. For example, it may contain very intimate text
messages, personal photos, access to one’s email and personal passwords,
banking information, and much more. That being said, the Supreme Court
argued that the data found on a cellphone may not be stored on the device
at all, but someplace else, such as a remote server. Since the very data
on a cellphone may actually live elsewhere, the “container”
definition failed to stand up in court.
What Police Officers Can Do
Some argued that the cellphone could possibly be used as a weapon. In light
of that concern, the Supreme Court said that it’s okay for police
officers to search the device without a warrant; for example, in search
of a blade that’s hidden inside the phone’s case.
Also, officers can take specific steps to prevent loss of the cellphone’s
data, which may come in very handy later on. In order to do this, an officer
can take the phone from the suspect, shut it off, and place it in a special
bag that cannot be penetrated by radio waves. Or, the officer can disable
the phone’s automatic encryption lock – those types of measures
to prevent the loss of data and potential evidence.
In emergency situations, officers may be allowed to dive into the phone’s
data without a warrant and under the most serious of circumstances. For
example, an officer can generally access a phone’s data when it
may help him or her locate a missing child, or thwart a bomb or terrorist attack.
Cellphones are considered to hold some of the most private, personal information.
With paperless technology, cell phones now store many of the documents
that 20 years ago, were only stored in home offices, in personal safes,
and on people’s home computers. Thus, most police officers need
a warrant before they can search an arrestee’s cellphone.
If you’re facing criminal charges,
contact Thomas & Paulk to work with our team of former prosecutors, who’ve handled more
than 7,000 criminal cases!