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I've been arrested..Can my phone be searched?

August 30, 2018

Recently I have encountered a few clients that have had their cellphones seized by law enforcement after they were arrested.  Officers then would ask the clients for the code and consent to search their phones.  Most individuals just comply with the officer's request to their detriment . 

 

In June 2014, the Supreme Court ruled that the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.  Officers may examine a cell phone’s physical aspects to ensure that it will not be used as a weapon, but the data on the phone can endanger no one. To the extent that a search of cell phone data might warn officers of an impending danger, e.g., that the arrestee’s confederates are headed to the scene, such a concern is better addressed through consideration of case-specific exceptions to the warrant requirement, such as exigent circumstances. A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but more substantial privacy interests are at stake when digital data is involved. The Chief Justice noted that many of the more than 90% of American adults who own cell phones keep on their person a digital record of nearly every aspect of their lives. The scope of the privacy interests at stake is further complicated by the fact that the data viewed on many modern cell phones may in fact be stored on a remote server; thus, a search may extend well beyond papers and effects in the physical proximity of an arrestee.

 

The Court’s holding is not that the information on a cell phone is immune from search; it is that a warrant is generally required before a search. Although the search incident to arrest exception will not apply to cell phones, “the continued availability of the exigent circumstances exception may give law enforcement a justification for a warrantless search in particular cases.”

In other words, unless there is an emergency requiring police to search a cell phone they are required to get a warrant.  As of now, when it comes to the Iphone 7 or above it is almost impossible to search the phone without the password.

 

So if you or a loved one has had their cellphone seized by law enforcement who are seeking to search it make sure you speak to an experienced attorney before consenting to a search.

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