If a police officer arrests you, he has the lawful authority to search you, including your pockets, and the area within your immediate control. But what happens if they come across your cell phone? Can they freely search the contents of it?
The United States Supreme Court sets the basic rules on search and seizure through interpretation of the 4th Amendment, which protects against unreasonable government intrusion. In a profound win for digital privacy rights, the Supreme Court ruled in 2014 that police officers must obtain a warrant before searching your phone. If they do not comply with this requirement, the search should be deemed unlawful al – and construed as a violation of an individual’s constitutional rights.
In most cases, the 4th Amendment prohibits law enforcement from seizing someone’s cell phone without a judicial warrant granted after probable cause about why the phone is a necessary piece of evidence is established. The law, generally speaking, states the following: states: “If law enforcement authorities have not yet secured a warrant but have probable cause to believe that a cell phone contains evidence relating to a crime, then they may be legally permitted to seize the cell phone for the time necessary to secure a warrant.”
Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone are neither lost nor erased. But because a person has a high expectation of privacy in a cell phone’s contents, police must then obtain a warrant before intruding into the phone’s contents.
Any situation where a cell phone is seized, and then searched, without a warrant, all criminal defense attorneys need to strongly consider filing a motion to suppress information gained through a search of a cell phone based on the unconstitutional seizure of property and also challenge the affidavit in support of the search warrants.
The Supreme Court ultimately decided that cell phones are most like homes, which police officers need warrants to search. The Court noted that “If anything, a contemporary cellphone—with its immense storage capacity—contains more private, sensitive information than a house. So, officers who plan to search cellphones will usually have to get court approval before having at it.”