CRIMINAL DEFENSE 

“Can a police officer look at my cell phone?”

The answer to the question is: "It depends." The question of whether police officers can seize and search a cell phone typically arises after a search that has already occurred. You can challenge the legality of the search and the admissibility of evidence resulting from the search. You might, although it is rare, address the issue of the search and seizure in a civil case based on invasion of privacy at the hands of law enforcement officers. The most likely time to challenge a search of your cell phone is when you are charged with a crime, and your lawyer files a motion to suppress the search for violations of the 4th Amendment.  The US Supreme Court in Riley v. California, 573 U.S. ___ (2014), a landmark United States Supreme Court case, unanimously held that the warrantless search and seizure of digital contents of a cellphone during an arrest is unconstitutional.  If you are charged with a crime, then your lawyer can attack the evidence obtained from the cellphone if is seized in violation of the 4th Amendment and the Riley decision.

"Do the Police Have a Warrant or an Exception to a Warrant to Search?"

For the most part, an item on a cell phone is like an item in your pocket. The police need a warrant to conduct a search for it. If the police have an exception to the warrant requirement, they can search your cell phone without a warrant. Nationwide, some of the most widely recognized exceptions to the warrant requirement are: 

• Consent (the cell phone owner gave consent to the search)

• Plain view (the cell phone, or what was on it, was in plain view)

• The automobile exception (the cell phone was in an automobile, which has a reduced amount of privacy)

• Public school (the search occurred on public school property)

• Search incident to arrest (the search occurred after the cell phone owner was arrested)

• Stop & frisk (police can stop a person they have reasonable suspicion to believe committed, is committing, or will commit a criminal act, and can frisk the person if they believe the person is armed and dangerous)

• Hot pursuit/emergency (the chase for the suspect is occurring, and the police believe the suspect can easily destroy evidence related to the reason for the chase)

In Texas, there are specific exceptions to the warrant requirement. The several states have unique rules that determine when police officers do and do not need a warrant to search an individual. If you are in federal court, there are circuit-specific rulings that may recognize exceptions to the warrant requirement. You should consult an experienced criminal defense attorney regarding this issue. They will help you determine whether a judge will find that law enforcement officers had an exception to the warrant requirement when they searched your phone.

At first glance, the list of exceptions appears so general, and it would appear that a police officer always has the right to search a cell phone, and be protected under the law.  However, this is not true. In cases involving plain view, the cell phone may be in plain view, but what is on it, such as text messages, may be concealed. If a police officer had no reason to break into a password-protected area on your cell phone, yet they chose to do so, a judge may throw out whatever evidence they recover from such a search.  If the officer did not first obtain a Riley warrant nor have any of the exigent circumstances or specific exceptions then your lawyer will have a very strong case for suppression.

In cases involving the automobile exception, if a cell phone is off and it does not appear to be linked to the offense for which a person was stopped, why did police search it?  Again, if an officer cannot give a good reason for the search, a judge may throw out any evidence that the search has recovered.

In cases involving stop & frisk, does an officer have the right, during a frisk, to seize and search a cell phone? The answer is no, not unless the officer has reason to believe that the cell phone could be a weapon, meaning it could contain explosives or be used to detonate an explosive device. A frisk is supposed to be a short, cursory examination of a person and his clothing. The purpose of a frisk is to determine whether an officer’s suspicions are valid. A frisk is not supposed to be an extended, aimless investigation.

In cases involving a search incident to arrest, or hot pursuit, are the contents of the cell phone related to the offense for which the person is being arrested or pursued? If not, why are the police searching the cell phone? If the police cannot provide acceptable answers to these questions, the evidence uncovered during the search may be thrown out.

"I Wasn’t There." You may not have standing to object:

A variety of situations involving a cell phone search can occur if you and your phone are separated. If your cell phone is lost and finds its way into the hands of police, they have a right to look at what is on it in an attempt to locate the rightful owner. If your cell phone is stolen, then it becomes evidence relating to a crime. The police may have the right to look at its contents to find out who stole it. The police may also be able to look at your cell phone if someone else who is using your phone is stopped by them. In this situation, the phone becomes evidence related to another person’s alleged offense. Depending on the circumstances of the other person’s case, the police may have the right to search your cell phone.

Because cell phones are very complex, the court system is just beginning to address many of the issues surrounding the search and seizure of these devices. As many cell phones have come to resemble computers, judges in a variety of circuits are reassessing how they will rule on cases that involve cell phones. Whether you are defending yourself or attacking another party, you should consult an experienced criminal defense attorney to ask whether the police had a right to search your cell phone.