Can police search your phone when you get arrested? The subject of your right to privacy and the ways in which it applies to the information on your phone are incredibly complex. To put it simply, the police legally need a warrant in order to search the contents of your phone but they may do so without one.
Although the seizure of a cellphone without a warrant for the purposes of collecting and surveilling someone\\\’s data might be both illegal and immoral, it happens all the time — and it can happen to you.
If you did not consent to search and believe that your phone was taken without a warrant to search, call Flanary Law Firm today. Donald Flanary is a police and government cellphone surveillance expert, who can help if your right to privacy has been violated.
What Happens to Someone’s Phone When They Are Arrested?
After an arrest, a person’s cellphone can be submitted as evidence. Do police have access to your phone? Physically, yes, but functionally, no.
The Fourth Amendment of the U.S. Constitution limits the power of the police and government to make arrests, conduct searches, and seize objects and contraband. This model was set during Riley v. California, 573 U.S. 373 when the U.S. Supreme Court ruled that under most circumstances, police officers need a warrant to search cellphones after arrests. But why is that? If law enforcement officers were allowed to search a person and any containers immediately around them, where do we draw the line?
Search and seizure law: a cellphone is not a container
The Supreme Court ultimately ruled that a cellphone is not a container. Not only can cellphones not hold physical objects, but the vast amount of private information that an individual\\\’s cellphone does contain can include privileged information such as medical and financial records, as well as personal communications and access to tracking data. Allowing easy access to this can violate the cellphone owner’s right to privacy.
Search and seizure law: compelled decryption
Officers forcing or compelling suspects to unlock their cellphones without a warrant to search is sometimes referred to as “compelled decryption,” which calls into question a suspect’s Fifth Amendment right not to self-incriminate.
You may be wondering, does using either a password or biometric feature to unlock a cellphone that might have incriminating evidence on it amount to being forced to testify against oneself? Or is it no different than non-testimonial fingerprinting or blood sampling? Courts have ruled in both directions, and a Supreme Court case has yet to come along to set a precedent on the matter.
Until then, keep your mouth shut and do not aid law enforcement in gaining access to your cellphone. Instead, call a trusted attorney with plenty of experience resolving search and seizure cases to defend your rights.
Exceptions and limits to search and seizure law
Because of the incredible amount of sensitive and personal information on your cellphone, the police need a warrant to search it. Although this statement is true in most situations, there are some exceptions, a few of which are:
- The police believe that the phone will be wiped or encrypted by a third party
- The circumstances are severe enough to invoke the “exigent circumstances” doctrine, which implies that the phone will need to be searched “now or never.” For instance, exigent circumstances could be invoked on a person involved in the plotting of a terrorist attack.
- If the phone is being used as a weapon
- If you consented to a search*
Note that there are other exceptions, but more importantly that law enforcement officers do not always follow the rules. If a police officer is determined to search your phone, you can bet that they are going to find a way to do it — with or without a Texas search warrant.
*People often feel pressured to consent to a search and fear that refusal might make them look guilty. Not only do you have the right to refuse a search, but your refusal of the search cannot be used in court to establish guilt. If a police officer asks to take a look, you should always politely decline.
Can police monitor my phone activity?
We have established that you have a right to privacy in a few different ways, but what about wiretapping? How do police extract data from phones? Police already use handheld forensic extraction devices capable of downloading all of the personal information and data from your cellphone in minutes. We know, this sounds like a conspiracy, but in 2011 the Michigan State Police Department admitted to owning five of such devices.
Wiretapping is also legal, but must be authorized by a designated district court judge in the form of an interception order. Wiretapping in Texas is statutorily limited to cases involving capital murder, murder, child pornography, and felony drug offenses other than possession of marijuana. According to the Assistant District Attorney of Fort Bend County, most of the wiretaps authorized by Texas judges are for narcotics offenses. If you are worried that your phone has been tapped in response to a narcotics offense, you might not have much time to act. Call a San Antonio drug trafficking attorney ASAP.
Law enforcement can also gather information from your phone without a warrant or a wiretap order using “pen registers” or “taps and traces,” which only record numbers from outgoing and incoming calls, respectively. Pen registers and taps and traces are essentially a way to create a phone record. When can phone records be obtained and or used against you? Wireless phone records or call detail records (CDRs) are not protected by the Fourth Amendment and can be obtained via subpoena.
Can police search your phone when you get arrested? Usually not, but they’ll try.
If you were arrested and believe that the police accessed your information without a warrant, or believe that you are currently under surveillance, call a federal criminal attorney in San Antonio right away.
Phone surveillance and information privacy are complex issues that require specialized attorneys. Donald Flanary and the lawyers at Flanary Law Firm are expert criminal attorneys, who know the process inside and out. If your rights were infringed upon, Don will know.