Police are generally not allowed to search the digital contents of a smartphone or cell phone as part of a search incident to arrest. In a unanimous decision in Riley v. California, the United States Supreme Court held that police must have your consent or get a search warrant in order to search such devices.
Cell Phone Search Similar to Home Search
One reason for the Revolutionary War was opposition to “general warrants” that permitted British officers to rummage freely through homes during colonial times to find any evidence of criminal activity. The Riley Court found similarity between warrantless cell phone searches and general warrant searches.
Cell phones contain bank records and other private information that we previously kept at home. Just because we can now carry such information in our hands as we go about our day does not make it less worthy of the protection for which the Founders fought.
No Warrant Required for “Search Incident to Arrest”
It’s important to note that police are permitted to search your body for weapons and contraband without a search warrant after they have placed you under arrest.
If you are carrying a smartphone, police are allowed to seize it to prevent destruction of evidence and inspect it to ensure officer safety. However, if they want to view your contacts, text messages, e-mails, pictures and other digital content, they would need to get a search warrant first.
Establish Probable Cause to Get Search Warrant
A search warrant is an order signed by a judge authorizing police to search for specific things at a specific location. A warrant to search your smartphone would require the police to provide the judge with an affidavit that establishes probable cause, or a reasonable belief, that your smartphone contains evidence linking you to a crime.
The judge will either issue the warrant or decline it based on the sufficiency of the affidavit.
Password Lock Your Cell Phone
The Riley decision defends against warrantless police searches of cell phones. It doesn’t defend against a search warrant that might have been based on an insufficient police affidavit.
Therefore, you should keep your cell phone “password locked.” Do not disclose the password to the police even if they have a warrant and call an experienced Tampa criminal defense attorney immediately to help you challenge the basis for the warrant.
