I would be a wealthy man if had a nickel for every time a client asked me, “Can the police search my cell phone without a warrant?” Until two days ago my answer was generally, yes. Police can conduct a cell phone search without a warrant when you are being arrested. But on June 25, 2014, the U.S. Supreme Court decision in Riley vs. California, caused me to change my previous answer to “generally no!”
Most searches of cell phone contents are conducted under the warrant-less search exception known as “search incident to lawful arrest.” Our laws are favorable to law enforcement making these warrant-less searches. Police can conduct warrant-less searches persons and even extend them to vehicles or surrounding areas under this exception. There are two main rationales behind to support this.
First, there is the interest of law enforcement safety. The search incident to lawful arrest exception is designed to discover weapons, for example, that may place arresting officers or other persons in immediate danger of harm. However, a cell phone itself is not be much of a weapon in this way. Nor would the contents of the cell phone normally pose an immediate threat of harm to arresting officers. Keep in mind that we are talking about searching the contents of a cell phone here. We are not talking about issues related to the actual seizing of the phone itself.
The second state interest concerns the idea of preserving evidence of the particular offense(s) related to the arrest. Police often discover additional evidence for the crime of arrest or evidence of an unrelated crime while conducting a search incident to arrest. An example here would be an arrest for DUI, leading to a search of the defendant’s person incident to that arrest, that in turn produces a cigarette pack in defendant’s pocket that contains an illegal drug.
The new law now minimizes the search incident lawful to arrest exception to search warrants within the context of cell phone content. While police can certainly seize a cell phone upon arrest, they must now generally get a search warrant before examining its contents. If they don’t any evidence derived directly from that search, or other evidence produced as a result of that search, is subject suppression. Even in so called exigent circumstances (evidence faces imminent destruction by remote wiping, for example), police must in most cases protect the phone in some other way until they can obtain a warrant to search the contents.
If you have a question about police searches or seizures or have been arrested for a crime in Murfreesboro, Smyrna, or La Vergne, you should contact an experienced criminal defense attorney right away. If there are legal issues related an unlawful search or seizure, an experience attorney will identify them and raise the issues in your criminal defense.
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