The U.S. Supreme Court recently considered whether the police can search someone’s cell phone data after they have been arrested. Can they look through your texts and call log? Can they scan through your pictures and videos to find evidence of a crime?
No. The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. If you are arrested and the police want to search your cell, they must get a warrant.
The case before the court actually involved two related cases. In both cases, the police arrested someone, searched their phone, and then used the information in photos or call logs to charge them with a more serious crime.
The Police Look Through Arrestee’s Cell Phone Texts, Contacts, Pictures & Videos
In the first case, the defendant was stopped for driving with expired tags. After running his license, the officer also found that the driver’s license had been suspended.
The officer impounded the car. During an inventory search of the car, officers found two handguns under the car’s hood and charged the defendant with an illegal weapons charge. While conducting a search incident to the arrest, the officer found and seized a cell phone (a smart phone) from the defendant’s pants pocket.
The officer looked through the phone’s texts and contacts and noticed repeated use of a term associated with a street gang. Back at the station, another officer looked through photos and videos on the phone. They found videos of what appeared to be gang activity.
Additionally, there was a photo of the defendant standing in front of a car the police suspected had been used in a shooting a few weeks earlier. Based on those photos, the police charged him in connection with a shooting that had occurred a few weeks earlier and asked for an enhanced sentence based on his gang membership.
In another case, the police observed the defendant making an apparent drug sale from a car. They arrested him and seized a flip phone from his pocked.
Officers noticed that the phone kept ringing from a number labeled “My House” on the phone. They opened the phone and saw a photo of a woman and a baby set as the phone’s wallpaper. They looked through the contacts and found the number associated with “My House.” They used on a online phone directory to trace that phone number to an apartment building.
When the officers went to the apartment, they saw defendant’s name on a mailbox and saw a woman resembling the woman in the phone’s wallpaper picture through a window. They got a search warrant and found drugs, including marijuana and drug paraphernalia, a firearm and ammunition, and cash. He was charged with drug possession with intent to distribute, and illegal possession of a firearm.
Can Police Search Your Cell Phone If You Are Arrested?
If you are arrested, the police are permitted to perform a search “incident to arrest.” This means they can search you on the scene to “remove any weapons” that could be used to resist arrest or escape and to seize evidence that might be later concealed or destroyed if not confiscated. Police can search both your person and your car incident to arrest (if you were pulled over prior to the arrest).
The purpose of this search is to ensure the officer’s safety and to prevent the concealment or destruction of evidence.
The problem with searching texts, photos, videos, etc on a cell phone is that neither of these purposes are achieved. The digital data on a phone can’t be used as a weapon or to help someone escape. Nor is it risk of destruction or deletion of data if the phone is secured by police.
Meanwhile, cell phones have an enormous amount of personal information that should be protected from an unreasonable search. Your entire life – emails, texts, phone logs, photos, videos, calendar – can be reconstructed by a search through your iPhone or Droid.
Therefore, the Court found that police must generally get a warrant before looking through an arrestee’s cell phone data (including texts, photos, videos, contacts, etc).
Police are free to examine the phone itself to make sure there is nothing dangerous about it (i.e. a razorblade hidden in the phone case), but the digital data is off limits. The proper course for police is to secure the phone and obtain a warrant before searching the phone data.
What About the Possibility of Remote Wiping of Data?
One concern raised by the prosecution was remote data wiping. When someone is arrested, they could have a friend wipe their data clean remotely to prevent the police from searching later. But the Court did not buy this argument. Even if this were a real threat (which the Court was not convinced happened often), the data wipe could happen when the arrest was anticipated or before the officer’s got their hands on the phone.
And if this were a real concern, the police could always turn the phone off, take out the battery to prevent remote data deletion, or put it in a “Faraday bag” to take it offline.
If you have been arrested and are concerned that your phone may have been illegally searched by police, speak with an attorney about your case. If the police searched your phone without a warrant and used that information to charge you, there may be a Fourth Amendment defense available to the charge.
