Police Must Get Warrant to Search Phone

The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Roberts Court decided today in Riley v. California (no one dissenting), that law enforcement must obtain a judicial search warrant to examine the contents of a cell phone seized during an arrest.  Prior to this, law enforcement officers had no precise guidance on this issue, with many departments operating under the presumption that they had the right to examine the entire contents of a phone seized during an arrest.  In reaching its decision, the Court examined its own precedent concerning the rationale for a "search incident," and decided that the reasons for that exception (namely, that the arrestee may have a weapon or other item to effectuate an escape) did not apply to cell phones.  The Court then weighed the citizen's significant privacy interest in the information contained on the phone against the government's legitimate interest in enforcing the law, and held the warrantless search unreasonable under the circumstances.  While exceptions may apply in some cases, the rule is now clear:  you want to see inside the arrestee's phone, you must get a warrant.

Remember:  you do not have to give law enforcement the right to search anything, including your phone.  Whenever you are in doubt, simply refuse to give consent and contact an attorney immediately.

Ben Hutson

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About me: I am a Board Certified Expert in Criminal Trial Law, a designation shared by about only 6% of Florida lawyers. I have been a lawyer since 1994, and my current practice includes personal injury law, criminal defense and commercial litigation. I enjoy helping people through the practice of law.