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Can The Police Take My Cell Phone And Search It?

April 22, 2015

Can The Police Take My Cell Phone And Search It?

Technology is all around us and we are all constantly on our cell phones, iPad, tablets, and other devices where we keep some of our most personal information.  Most people do not delete our sensitive information and if we do, can’t the police get it anyway?

Now each case is different and depending on the circumstances, the answer may be yes, but it may also be no! Yes, I said NO!

Can police just look at my phone for no reason?

No! Our privacy rights under the 4th Amendment come before the police officers’ interest in our information that we may contain on our phones.  The Court recently said that “cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse”.

Does that mean if I get arrested, the officers cannot look at my cell phone?

When a person is arrested, the general rule is that all items that you have on you can be searched after a lawful arrest.  If you have a wallet or purse with you, the officer may do a search of the items.  Any evidence the police find can be used against you.

However, your cell phone is a different story.  If you are arrested, the officer cannot just start looking through your phone in order to get evidence on you for a crime.

If your phone is in a locked state, meaning there is a password protecting the ability to display the information on the device, then the officer cannot look at your phone.  However, if you did not bother to put a password on it or it was not in the locked state, then the officers can look at the phone and take off the password protection in order to get the information at a later time.

In either case, the officer must get a search warrant before going through your phone.

Does that mean the police can never look at my phone or other device?

The Supreme Court did not go that far, but now police must get a warrant to search your phone. That means that the police must contact a judge and give reasons to search your phone. They must give a valid, legitimate reason to the judge with information showing that a crime has occurred and you committed the crime. This is a lot harder for the officer to do because in most cases the police do not have any reason to search, they just do.

How do I protect myself from the officers searching my phone?

The best protection is to not leave anything on your phone that you do not want others to see.  If your phone is lost or stolen, would you want others to see what you have been doing? If not, then make sure you are not keeping sensitive information on it.

In most cases, police may not search your phone without first obtaining a search warrant from a judge.  But because officers can get warrants, or in some circumstances, search even without a warrant if they believe there are emergency circumstances exists, it is best to keep anything that will incriminate you off your phone. 

What should I do if the police want to look at my phone?

Although I believe this case will be watered down like so many other cases before it. But for now, we all have a reasonable expectation of privacy in our cell phones, tablets, IPads, or other electronic devices, and just because the police want to look, it does not mean you have to let them! Therefore, if they want to look, don’t consent.  Remember, they cannot search your phone without your consent, a warrant, or other emergency circumstance. 

If officers want to look, they are looking to convict you, so make sure to use your phone wisely by making your first call to an attorney.

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Tina M. Barberi, criminal defense attorney in Fresno, CA, defends clients when they are charged with a criminal, DUI, or traffic offense. If you are charged with a crime, contact her now for a free consultation.

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