Search Warrants and Cell Phones

If you are arrested by the police and charged with a criminal offense, you have certain rights. Most of us are familiar with the traditional Miranda warnings of your rights to remain silent and speak with an attorney. But you also have a right under the Fourth Amendment to be free from “unreasonable searches and seizures.” This means police generally cannot search your property without first obtaining a warrant from a judge.

Despite the Fourth Amendment, however, the courts typically allow police to search your personal and immediate surroundings when they arrest you. Ostensibly this is to ensure you are not carrying any dangerous weapons or attempting to destroy evidence. These types of “warrantless searches incident to a lawful arrest” have been permitted by the U.S. Supreme Court for over a century.

Supreme Court Says Warrants Are Necessary (In Most Cases)

But there are still limits to these types of searches. The Supreme Court announced an important restriction in June 2014, when the justices unanimously held that police had to obtain a warrant before searching the “digital content” stored on a suspect’s cell phone. While police may seize the physical phone as part of an arrest, they cannot demand a suspect “unlock” the phone or conduct a search of the phone’s encrypted contents without a warrant.

Chief Justice John G. Roberts, Jr., writing for the Court, noted cell phones are essentially “minicomputers that also happen to have the capacity to be used as a telephone.” Today’s smart phones contain “a cache of sensitive personal information,” the chief justice said, which in many cases could “expose to the government far more than the most exhaustive search of a [criminal suspect’s] house.” Given this reality, the chief justice said it was important for the courts to treat cell phones differently than other property that might be seized during an arrest.

The Supreme Court did say there may be limited circumstances where an “emergency” could justify a warrantless search of a cell phone—for example, if law enforcement had legitimate reason to believe there was imminent danger that someone might try to erase data from the cell phone. The court also said police may be allowed to “disable a phone’s automatic-lock feature in order to prevent the phone from locking and encrypting data.” But police could not compel a suspect to unlock an already locked phone without a court order.

It should also be noted that a suspect does not have any Fourth Amendment privacy rights in a third party’s cell phone. In several cases decided since the Supreme Court’s 2014 decision, trial judges have said that if a suspect communicates with someone else, the other person’s cell phone may be searched without a warrant. For example, last year a Texas appeals court ruled police did not need a warrant to search a murder victim’s cell phone, despite the defendant’s claim that “he had an expectation of privacy in the text messages he exchanged with” the deceased.

Contact an Allen Criminal Defense Attorney Right Away

If you are facing arrest on any type of criminal charge, you must remember that you are not obligated to give law enforcement permission to search any of your personal effects, including your cell phone. If you have any concerns or doubts about your rights, it is important to contact a Frisco theft lawyer as soon as possible. Contact the offices of Rosenthal Kalabus & Therrian, if you need to speak to a Collin County criminal defense attorney immediately.

Written by: Rosenthal Kalabus & Therrian Last Updated : August 11, 2023