Nearly everyone carries a phone these days, and there’s an almost 100% chance of it being a smartphone. Today’s phones carry sensitive and personal information, something you never want to get in the hands of law enforcement, or anyone else for that matter.
Should you be arrested, police can search your pockets, your car, your wallet, or your purse/backpack without a warrant…but can they search your phone?
Our criminal defense attorneys at Stechschulte Nell Law explain the highly contested topic, both inside and outside of the courts, on what police officers can and cannot do with someone’s smartphone. If you are arrested, contact a board-certified lawyer as soon as possible to talk about the specifics of your case. It’s our mission to mitigate your risk at trial; seeking legal guidance may help change the outcome of your case.
Smartphones & Current Law
Smartphones are relatively new to modern society, and thus it has taken some time for the laws to clarify what can and cannot happen to smartphones during an arrest. It was not until June of 2014 that the U.S. Supreme Court ruled that law enforcement will need a warrant before they can search an arrestee’s smartphone.
The Fourth Amendment states, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” In other words, it limits the power of the police to seize and search people, their property, and their homes without a search warrant.
Since most technology is paperless now, what was once stored at home in an office, a home safe, or on a computer is now on a phone. This is why police officers must obtain a search warrant to go through your phone. This type of search is similar to an officer going through your home searching your office, safe, or computer…all things that would require a search warrant.
Should I Let Police Search My Phone?
Smartphones now hold some of our most private and personal information. If you are arrested and taken into custody and your phone has been confiscated know you do not have to consent to your phone being searched. It is not illegal for a police officer to ask permission but know you do not have to say yes unless they have a warrant.
Don’t compromise your case by allowing an officer to search your phone; instead, contact an experienced defense attorney who can help guide you.
When Can Your Phone Be Searched Legally?
We discussed that a police officer cannot legally search your phone without your consent or a warrant, but there are certain circumstances when a legal search without a search warrant can be conducted.
These circumstances are considered serious, and the officer does not have time to wait for a warrant to be granted by a judge.
Some examples of these serious circumstances include:
- The smartphone could be used as a weapon (i.e., a blade hidden inside the phone case).
- Smartphone data can help locate a missing child.
- Smartphone data can stop a bomb or terrorist attack.
- There is hot pursuit. The police believe the suspect can easily destroy evidence related to the reason for the chase.
- The search is on public school property.
- The evidence can be seen publicly. For example, the photo is on the front screen of the phone.
In other circumstances, a police officer may not search your phone, but while they are waiting for the warrant, they can confiscate the smartphone, shut it off, and place it in a special bag that cannot that does not allow radio waves to penetrate through the bag. Or the officer may disable the phone’s automatic encryption lock. These steps help prevent the loss of data and evidence by the owner/arrestee until a search warrant has been granted.
Smartphone Search or Seizure? Call Stechschulte Nell
If law enforcement asks to conduct a search of your smartphone and/or have seized your phone, you should reach out to Stechschulte Nell Law immediately. Our experienced and knowledgeable criminal law attorneys will help you understand your rights and make sure they were not violated. Our attorneys will make sure any illegally searched for and found evidence will be made inadmissible in court and not used against you should your case go to trial.
Understanding your rights with your smartphone and police searches can be complex, make sure to have a veteran criminal law attorney by your side to assist you with your rights from police interview to trial.
Call us today at 813-280-1244 for a case consultation and let us work with you.
