Can the Police Search My Cell Phone?
Over the last decade, our cell phones have become completely intertwined with our lives. Our phones contain incredible amounts of personal data, such as our communications with others, our calendars, our internet searches, and our files. Given that so much private information is contained on our phones, it’s natural to ask, “can the police search my cell phone?”
The very short answer to that question is, yes, the police can search your phone, but they will need to get a search warrant from a judge to search your phone unless you consent to the search. If the police have illegally arrested you or searched your phone, you may have recourse.
I’m going to broadly discuss the circumstances when the police can search your phone, and I will break my discussion into two parts. First, when the police can physically search your phone for data, and second, when the police or prosecution can get data about your cell phone from a third-party provider, like your cell phone service provider.
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Data on the Phone
Before I discuss when the police are legally allowed to physically search through your phone, I want to provide the important caveat that if you consent, the police can legally search your phone even if they don’t have probable cause or a warrant. Because of that, the police will oftentimes ask a suspect, “you have nothing to hide, right? Can I search through your phone?” Sometimes people feel intimidated by the police asking them to search, or they feel that if they say “no, you can’t search,” then that will be used against them, or they will somehow be found guilty because they didn’t consent to a search.
You should never consent to a search of your phone or a search of anywhere, for that matter. When you consent to a search, you give the police evidence on a silver platter. The police you deal with might be friendly with you, but that doesn’t mean they won’t put you under arrest if they find evidence that they think links you to a crime.
If you don’t consent to a search of your phone, the police will need a search warrant to search your phone. This requirement applies in all states, as it is a rule developed by the United States Supreme Court in the 2014 landmark case Riley v. California. That case established a clear requirement that the police must obtain a search warrant before going through a person’s phone and collecting the data inside of the phone.
In addition to the requirement for the police to have a warrant to legally search a person’s phone, there is a separate issue of how the police obtain a person’s phone in the first place. If the police take or seize your phone from you without proper legal justification, that is a separate violation from the police searching the data stored inside your phone without a warrant.
Generally speaking, if the police arrest you for a crime, you have your phone on your when you are arrested, and the police think that your phone may have evidence of criminal activity, they can seize your phone as arrest evidence. This will often happen with drug crimes when there were cell phone communications between the defendant and the undercover officer. In that situation, the police have reason to believe that there are communications on the defendant’s phone related to drug transactions, so they will keep the defendant’s phone as evidence after he is arrested.
However, although the police can lawfully seize the defendant’s phone as arrest evidence, because of the U.S. Supreme Court decision Riley v. California, the police will still need to obtain a warrant before they can lawfully search the phone.
Even if the police obtain a warrant to search a phone, there is the additional issue of whether they can unlock a phone that is password protected or otherwise encrypted. The government has tremendous resources to try to unlock phones, but sometimes they are unsuccessful. Some companies that are focused on consumer privacy, like Apple, have resisted government orders to unlock phones. So, even if the police obtain a warrant to search a phone, that doesn’t necessarily mean that they will successfully be able to retrieve data from a phone.
Data from the Provider
In addition to the data that can be obtained after going through your phone, the government may try to obtain sensitive information about your phone usage from your cell phone service provider. Historically, under what’s called the “third-party doctrine,” courts have held that data held by third parties, such as a cell phone provider, is not private since the customer knowingly gives up information to your cell phone provider, such as the numbers you call, or when you make the calls.
However, a recent United States Supreme Court Decision, Carpenter v. United States, held that cell site location data is so sensitive and private that, although we know that our cell phone provider has that data, we retain a reasonable expectation of privacy in that information. Consequently, the government must obtain a warrant to obtain your cell site location data. The Carpenter decision may pave the way for more privacy rights with other cell phone data held by our cell phone providers, such as who we call or when we make those calls. In response to the Carpenter decision, some prosecutors now seek a warrant before they obtain more generic phone records because they don’t want the court to rule that they should have first obtained a warrant before seeking a defendant’s cell phone records. Additionally, some companies, like Apple, require a warrant before they turn over certain sensitive information, like iCloud data.
So, although the government does not need a warrant to obtain a lot of data held by cell phone providers, they do need a warrant to obtain location data, and going forward courts may require warrants for other types of data held by cell phone providers.
If you’ve been charged with a crime and the police have searched your phone to find incriminating evidence, give me a call for a free consultation. I can assess your case to determine the best right legal strategy for you. Contact the office today.