Do Police Have the Right to Search My Cell Phone?

Phone SearchThe Fourth Amendment to the United States Constitution defends “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Of course, there are exceptions where police officers have the legal authority to perform such actions, even without a warrant. In the past, we have covered when police can legally search your car, and today, we will cover when they can look through something that some people may consider even more personal. Here are the answers to the question, “When can police search your cell phone?”

Can Police Officers Search Your Cell Phone After an Arrest?

The U.S. Supreme Court has generally defended the rights of suspects and arrestees in cases related to the search of their cell phones incident to a lawful arrest. The basic principle related to such a search permits the police to search someone’s person, including containers, and the area “within his immediate control” without a warrant.

In 2014, they were faced with two similar and significant cases involving cellular phones:

  • In one, Riley v. California, a police officer arrested someone on one charge and found information on the person’s phone connecting them to other crimes, resulting in a harsher sentence. The defendant appealed, saying the officer did not have the right to search his phone.
  • United States v. Wurie focused on a defendant who was convicted on evidence found in his apartment. Although the police obtained a warrant to search his living space, they were only entitled to look there because of information that the police found on his cell phone after seizing it.

The question for both cases related to searches incident to arrest and the Supreme Court unanimously affirmed that the principle did not apply to cell phones as they would for other items on their person and in their surroundings. They determined that an arrested person’s cell phone generally does not pose a threat to officer safety, nor does it enable the arrestee to escape. Moreover, cell phones may contain far more personal information than other items officers could find in other containers and objects. This would mean that searching a phone without a cell phone search warrant may be a serious and, ultimately, unconstitutional breach of privacy.

When Can the Police Search a Cell Phone Without a Warrant?

Of course, that ruling applies to those specific situations. There are still exigent circumstances in which the police can look through the contents of someone’s phone without a warrant. The U.S. Supreme Court also stated in their ruling that police officers may have the authority to search and seize a phone if they believe that it is necessary to do so during an emergency - for example, if they believe the phone contains information on the location of a kidnapping victim.

An important situation in which a police officer may have the legal authority to do this is if they have reason to believe the suspect would delete potentially incriminating data from their phone. The existence of methods by which third parties could remotely erase information from the device may also allow officers to search through it immediately or to seize it and store it in a container or location where signals cannot reach it.

Do Police Officers Need a Cell Phone Search Warrant For Location Data?

There is also the matter of whether the police need a warrant to obtain location data for a cell phone from the relevant service provider. In 2018, in the case of Commonwealth v. Augustine, the Supreme Court again ruled in favor of cell phone users’ privacy.

The majority of Supreme Court Justices determined, in a 5-4 ruling, that total access to cell site location information (CSLI) without a warrant was far too intrusive a power for the government to have. Even though cell phone users agree to disclose such information to their provider, it is not with as much intent as, for example, disclosing personal information to a business partner. Cell phone tracking enables anyone with the right access to know where someone is at any time they are carrying their phone. But there remains some expectation of privacy on the part of cell phone users, which is why if the police want to look at CSLI and determine where someone was at a certain time, they will need a warrant.

Did the Police Seize Your Phone Without a Cell Phone Search Warrant?

The power of law enforcement to conduct searches and seizures may seem extensive, but certain conditions must be met before they undertake such actions, and certain rules must still be followed during and after the search. If you or a loved one face legal trouble and suspect that an illegal search may have occurred during your arrest or investigation, you will need to find an aggressive Chicago criminal defense attorney to hold the police accountable. The lawyers at Mitchell S. Sexner & Associates LLC are ready to defend you, your case, and your rights as an American citizen. Call us today at (312) 644-0444 for a free consultation.

Written by Mitchell S. Sexner Last Updated : January 5, 2024