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Are the Police Allowed to Search My Cell Phone?


3/23/2020

If you are arrested, the police have the authority to search you. This includes your pockets and areas within your immediate control, but does that include the contents of your cell phone? The answer is complicated, but typically, the police need a search warrant to go through your cell phone.

While there are laws about searches, seizures, and warrants, law enforcement officers do not always follow them. If you have been charged with a crime and had your phone or other property searched, it is always a good idea to consult with a Philadelphia criminal defense lawyer to determine your rights and options.

4th Amendment Protections and Exceptions

Americans are protected from unreasonable search and seizure under the 4th Amendment of the U.S. Constitution. This constitutional protection applies to both people and property, including cell phones and other electronic devices and files. It applies to all areas to which there is a reasonable degree of an expectation of privacy.

A search warrant gives law enforcement agencies the right to search for potential evidence, including evidence that may be on a cell phone. That said, the police may not need a search warrant under the following circumstances:

  • Exigent circumstances
  • Consent
  • Plain view
  • Administrative searches
  • Stop and frisk
  • Incident to a lawful arrest

Cell Phones and the 4th Amendment

Although cell phones were far in the future when the constitution was written, the protections of the 4th Amendment extend to your cell phone and other electronic devices and files. To search your cell phone, the police must have a valid warrant, even if you have been arrested. The 2014 Supreme Court ruling in Riley v. California helped define the scope of the 4th Amendment to include cell phones.

In fact, the Riley court opined that a person’s cell phone has more information than their house does. Considering this, there is a “reasonable expectation of privacy” for the contents contained within cell phones, and police should not be able to search an arrestee’s cell phone without voluntary consent or a valid search warrant.

What is a Search Warrant?

In order to search property or for specific items, the police must obtain a search warrant. This order is signed by a judge and gives the authority for law enforcement to execute the search. A warrant provides specific information as to what is being searched for and where law enforcement may search for it. Warrants cannot be used to randomly search your property or cell phone without an explicit and legitimate purpose. A search warrant authorizes the seizure of both tangible and intangible evidence.

To obtain a warrant, police officers must show the judge or magistrate that there is probable cause that criminal activity is occurring or occurred at the place of the search or in relation to the location or item to be searched. Most of the time, this is done by presenting affidavits under oath that provide information as to why a search warrant is necessary.

If an informant is used to obtain the search warrant, Pennsylvania law requires that the reliability of the informant be tested under the following criteria:

  • The informant gave prior reliable information
  • Another source corroborates the informant’s story
  • The informant’s story was against their interest
  • The suspect’s reputation supports the informant’s allegations

Contesting a Warrant in Pennsylvania

Since the suspect is not present when the warrant is issued, they have no way to contest the warrant before it is served. However, they can later challenge the validity of the warrant. It is also important to note that if law enforcement obtains evidence without a warrant or probable cause, your Philadelphia criminal defense attorney can argue that the evidence be inadmissible in your case. This means it cannot be used against you by the prosecuting attorney.

A skilled criminal defense attorney will be able to determine whether or not the search warrant(s) obtained in your case were valid or not. To be valid, a search warrant must:

  • Be signed and sealed by the issuing judge
  • State the specific date and time of issuance
  • Explicitly identify the property to be seized
  • Name and describe the particular person or place to be searched
  • Direct that the search be executed within a specified period of time not to exceed two days from the date of issuance
  • State that it be served in the daytime unless otherwise authorized on the warrant
  • Certify that the issuing judge has found probable cause based upon the facts sworn to or affirmed before the judge by written affidavit attached to the warrant
  • State the title of the judicial officer who issued the warrant

The Exigent Circumstances Doctrine

There are a few exceptions to the warrant requirement. The exigent circumstances doctrine allows law enforcement officers to act if they believe they must search your cell phone immediately to prevent harm or the destruction of evidence. For example, they may not need a warrant if the data is at risk of being lost if they wait, a child is missing and they believe your phone contains information about his or her whereabouts, or a disaster is imminent if they do not search the phone.

Police can confiscate or search the phone if they believe that there is a weapon within it or if they have reason to believe that the data will be lost. If they believe the latter, they can take preventative steps such as turning the phone off, place it in a bag that protects it from radio waves, or disable the automatic encryption lock. Your Philadelphia criminal defense attorney can advise you as to whether exigent circumstances existed that allowed the police to search or take your phone.

Questions about Your Legal Rights? Talk to an Experienced Criminal Defense Lawyer in Philadelphia

Being arrested and having your property searched or your cell phone taken can be a stressful and violating experience. You might be made to feel like you do not have any rights, but you do. When you hire a seasoned criminal defense lawyer, you can be informed of your rights and take action if your rights were not upheld. Lauren A. Wimmer is a Philadelphia criminal defense attorney with experience filing and litigating motions to suppress evidence recovered with and without a warrant. If your property was searched, let us fight to get the evidence out of your case.

Ready to schedule your legal consultation with a Philadelphia criminal defense lawyer? Call Wimmer Criminal Defense Law today at 215-712-1212 or use our convenient online contact form.