Can Police Search My Cell Phone Without a Warrant?

Criminal Defense Lawyer

As a general rule, all searches require a warrant, and are unreasonable if done without a warrant unless they fit within an exception to the warrant requirement. Up until relatively recently, it was debatable whether the police could search a cell phone after arresting someone. The United States Supreme Court has since made the question of whether the police can search a cell phone without a warrant clear; the answer is no. If you have questions or need legal representation, a criminal defense attorney can be by your side throughout your case.

In the past, the government would argue that searching a cell phone would fall into the exception to the warrant requirement known as “search incident to arrest.” The exception for searches incident to an arrest would cover the area in the individual’s immediate control, and was meant, in part, to prevent an individual from gaining access to a weapon or destroying evidence. The United States Supreme Court reasoned that the data on a cell phone could not be used as a weapon to harm an arresting officer, nor could it effectuate an arrestee’s escape. Law enforcement may seize the cell phone, they may examine its physical aspects to ensure that it cannot be used as a weapon—such as a hidden razor blade—but the officer is limited to securing the phone and may not peruse its contents.

Another concern may be the destruction of evidence. To address this, an officer may seize the phone while pursuing a warrant to search the contents. Cell phones are unique in that they may be vulnerable to remote wiping or data encryption. An officer may shut the phone off or remove its battery. An officer may place the phone in an enclosure that isolates the phone from radio waves. There may be a situation where police could justify a warrantless search due to exigent circumstances; or should an officer encounter the phone in an unlocked state, he or she may disable a phone’s automatic-lock feature.

As cell phones become more prevalent and the technology more impressive, courts have considered the importance of protecting an individual’s privacy in the contents of the devices. A cell phone stores a lot of personal information. The Supreme Court compared a cell phone to the contents of a wallet; for instance, a photograph of someone tucked in a wallet would not reveal as much as the same photograph on someone’s cell phone, which may contain the dates, locations, and descriptions in its data.

When the Fourth Amendment was contemplated and interpreted throughout the years, people did not typically carry a cache of sensitive personal information with them daily. Now, people without smartphones are the exception. In order to protect an individual’s privacy within the contents of a cell phone, the search of a cell phone must now be done pursuant to a warrant.