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 a warrant? Whether police can search your phone is a highly contested topic—both inside and outside of the courts.
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 that the U.S. Supreme Court ruled that in most cases, police officers need a warrant before they can search an arrestee’s cellphone.
Supreme 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 phone may actually live elsewhere, the “container” definition failed to stand up in court.
How & When Can Police Search Your Phone?
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.
What You Can Do
Cellphones are considered to hold some of the most private, personal information. With paperless technology, 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 phone.
If you were taken into custody and had your phone confiscated by the arresting officer, remember that law enforcement must have a warrant to search the data and information stored on the device. They may search the device itself, and its case, but your data is protected.
If your phone was searched against your will and without a warrant, our Tampa criminal defense lawyers are standing by to help. As former prosecutors and with thousands of successful cases under our belts, we understand in which precise circumstances police can search your phone and whether the information they find can be used against you. If a search of your cellphone and its information was conducted in violation of your rights, any resulting evidence cannot be used against you. Our attorneys know how to show that such evidence is inadmissible, and we will use all of the resources at our disposal to protect your interests.
Can police search your phone? Find out more about this important topic and discuss your charges with our seasoned team. Contact Thomas & Paulk today for a free consultation!