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Cellphone Search: Is It Legal?

Cellphone are ubiquitous in our American society – almost everyone from adults to children has or has access to one. Historically, the issues regarding the legality of warrantless searches and seizures dealt primarily with physical objects – people, vehicles, etc. As cellphone use has increased, the 4th amendment to the United States, which protects against unreasonable search and seizures, has had to address the concern with searching the data contained on these devices.

Cellphones contain very personal information, bank accounts, text and email messages, medical information, personal videos, social media accounts, etc. The idea that law enforcement should be access to this information without a warrant or emergency seems like a clear violation of our privacy rights. Yet, the United States Supreme Court did not confront this issue directly until 2014, in Riley v. California. The Court ruled warrantless searches of cellphone data are in violation of the 4th amendment, unless there is an emergency.

Practically speaking, what does this mean for you? If you are arrested, law enforcement cannot access your cellphone information without first obtaining a warrant or there is an identifiable emergency. This is important because oftentimes, someone will get arrested – for DUI, drug possession, drug sales, theft, etc. Based on this arrest, law enforcement will conduct what is referred to as a “search incident to an arrest.” This means that an arrest (lawfully, of course) allows law enforcement to conduct a search of your person or area within the immediate vicinity of your arrest, including your vehicle in some circumstances.

The rationale for allowing this type of search is officer safety and to prevent the destruction of evidence. The reality, however, is this allows law enforcement to build a stronger case and may result in more serious charges being filed.

Warrant Requirement:

Even if law enforcement does obtain a warrant, the information found on your cellphone as a result of that warrant is not automatically admissible in court. The warrant must still comply with constitutional and statutory requirements – supported by probable cause, neutral detached magistrate, particularity, timeliness, etc. If the warrant is defective, the evidence obtained can be challenged in court and may be deemed inadmissible.

If you have been arrested and your cellphone was searched, contact Kern Law, APC today. We have fought to protect and defend our client’s rights since 2004. We provide a free consultation.