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Cell Phones: Fair Game for Police to Search ?

Posted by Robert E. Heyman | Jan 29, 2021 | 0 Comments

There you are, sitting in your car in front of the police officer who just pulled you over for an inoperative taillight. The officer writes you a ticket and when he hands it to you he notices what appears to be a small baggie of marijuana in the back seat, left there by the careless friend you just dropped off on your way home. Suddenly you are under arrest, and your pockets and purse are searched. Nothing else is found besides your iPhone 12 in which you have stored most of the information about your life for the last 5 years. Can the police open and search it without a warrant as part of their investigation?

Pursuant to the U.S. Supreme Court's ruling in Riley v. California, 573 U.S. 373 ( 2014), the answer in all but a few circumstances is a resounding NO. In that case, the Supreme Court was required to weigh a number of opposing interests, and just as importantly, the Justices had to evaluate the technological wizardry of today's cell phones in light of the Fourth Amendment which dates back to 1789. The Riley case arose from a traffic stop which escalated to an arrest for a weapons charge. As part of the arrest, the police seized and searched the defendant's cell phone without a warrant. Found in the phone were gang references and photographs which linked him to a recent shooting incident for which he was subsequently charged.

The Court first noted the ubiquitous nature of the modern cell phone, wryly commenting that " they are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude that they were an important feature of the human anatomy". In addition, the Court recognized the mind-boggling technology which is packed into today's cell phone, noting that the term "cell phone" is itself misleading shorthand; that "many of these devices are in fact minicomputers that also have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps or newspapers".

Prior to the emergence of this technology, a person would need a large trunk to transport all of the information and the functions now stored in a phone the size of a cigarette pack. To search that proverbial "trunk", the police would have had to obtain a search warrant. The Court concluded that the same warrant requirement must apply to the cell phone. As an additional fact in requiring a warrant, the Justices noted that not only do cellular phones contain vast amounts of information, they can also be used to access information from remote locations, the most obvious being the "cloud".

While the Supreme Court held that the search in Riley was improper, please understand that given sufficient probable cause, the police will obtain the necessary search warrant to look through your cell phone as they please. Since Florida law now prohibits texting while driving, the police may seize your phone and hold it until a warrant is obtained to review your texting history. While this is unlikely in most circumstances, I do envision the police exercising this authority in an accident case which caused personal injuries.

In addition, "exigent" or emergency circumstances may permit the police to search your phone without a warrant. As a word to the wise, I suggest that you review the information, photos, etc. stored on your phone from time to time and either delete what is not necessary or move it to a remote location. Should you or a loved one have an issue regarding a police search (especially one which has resulted in criminal charges being filed), please do not hesitate to contact me at my offices at 727-822-3700 for a no-cost consultation.


About the Author

Robert E. Heyman

Bio Robert E. Heyman was born in Providence, RI, and grew up in Barrington, RI. He graduated from Barrington High School in 1974, and earned the rank of Eagle Scout. Following high school graduation, Mr. Heyman attended Northfield-Mt. Hermon Academy in Northfield, MA and thereafter attended co...


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