If you were a law enforcement officer investigating a crime or a prosecutor looking for evidence to use against a criminal defendant, think of the things you would want to support your efforts. Photographs, video, communications with others, internet search histories, files and documents, phone records, and other material; anything that could reveal where the person was, who they were with, what they were doing, and what they were saying related to the crime. In the past, police and prosecutors would have to engage in surveillance, interviews, and all of the painstaking detective work you’ve seen in countless TV shows.
Now, however, all of that information can be found in one place, conveniently located in the suspect’s or defendant’s pocket: their cell phone.
But just because a phone may contain a treasure trove of evidence, that does not mean that authorities have an automatic right to take it, unlock it, and search it. If you find yourself under arrest and you’ve been charged with a crime, here is what you need to know about the fate of your phone and the ability of police and prosecutors to lawfully gain access to its contents.
Your Fourth Amendment Rights And Your Cell Phone
The Fourth Amendment to the U.S. Constitution protects all of us against “unreasonable searches and seizures.” This right is why, in most situations, police must obtain a warrant or the subject’s consent before they can search a home, among other limitations on what, how, and when law enforcement can obtain evidence. As interpreted by the U.S. Supreme Court, the Fourth Amendment’s limits extend to the contents of cell phones. If police access the data on your cell phone without first obtaining a warrant or in other limited situations, a judge will likely find that any material contained on your phone is inadmissible as evidence against you.
Warrant Needed In Most Cases To Search Cell Phone Contents
To ensure the safety of officers and prevent the destruction of any incriminating evidence that a suspect may be holding, police routinely search (or “pat-down”) individuals once they are in custody without first obtaining a warrant. Once they conduct this initial search, police can take possession (temporarily) of everything the suspect is carrying – whether it is a weapon or illicit substances, or the innocuous and common things most people keep with them, such as a wallet, keys, or cell phone.
The Supreme Court has long recognized this exception to the Fourth Amendment’s warrant requirement and upheld the right of police to conduct such custodial searches and take possession of the items they find on a suspect. However, that exception is not without limits and does not mean that police can search a suspect’s possessions (if the search is unrelated to preventing harm or the destruction of evidence).
In 2014, the Court confronted this issue as it relates to cell phone contents and unanimously held that the reasons and rationale that support warrantless searches of arrestees do not apply to the information and data contained on cell phones.
In Riley v. California, the Court rejected the argument that safety concerns could justify a warrantless cell phone search because, in its words, “once an officer has secured a phone and eliminated any potential physical threats…, data on the phone can endanger no one.”
As to concerns about an arrestee’s destruction of potential evidence contained on their phone, the Court considered that possibility to be remote given that once police confiscate the phone, they could prevent any such efforts by removing the phone’s battery or powering it off.
Writing for the Court, Chief Justice John Roberts noted that the Fourth Amendment was adopted as a reaction to British troops indiscriminately rummaging through homes, papers, and other items in search of evidence or information. He concluded that “the fact that technology now allows an individual to hold such information in the palm of his hand does not make the information any less worthy of the protection for which the founders fought.”
In its 2018 decision in Carpenter v. United States, the Court extended its ruling in Riley to hold that obtaining historical cell phone location records also requires a warrant in most cases.
A Warrant Does Not Mean an Unlimited Cell Phone Search
When police or prosecutors request a search warrant from a judge – whether for a home, office, car, file cabinet, or cell phone – they must set forth the reason they are doing so, why they think the warrant is needed, the specific areas they are seeking to search, and the items or information they are looking for. If the warrant exceeds what the constitution allows, the evidence might not be admissible against you at trial.
Police Don’t Need a Warrant If You Consent To a Search of Your Phone. DO NOT GIVE YOUR CONSENT.
As with an officer’s request to search your vehicle, if you consent to an officer’s request to unlock your phone and give them access to its contents, they no longer need a warrant. When you agree to a search of your phone, you waive any right to challenge the legality and constitutionality of that search. You may also lose your ability to challenge the admissibility of any incriminating evidence found on your phone based on the search. That is why you should never consent to a search of your phone and instead contact a criminal defense lawyer as soon as possible to preserve and protect your rights.
At F. Clayton Tyler, P.A., we are committed to protecting the rights of all people charged with a crime in Minnesota. Please contact us today to arrange for your free, confidential initial consultation.