Groundless searches when law enforcement would just pull a cell phone out of a pocket of someone being arrested and dig around looking for something illegal has been affirmed as unconstitutional.   Yesterday, the Supreme Court ruled unanimously that police in most cases must get a warrant from a judge before searching a cell phone. While obtaining a warrant can move fast in this digital age, they still must have best probable cause that a crime is being committed.

Previously, warrantless searches were justified by law enforcement by the need to protect themselves or to stop the ability for evidence to be destroyed. Cell phones have so much storage capacity – we all store so much detailed information of our lives – making them worthy of the protection of the Fourth Amendment because of all that they may reveal.  Giving access to a person’s cell phone is even more detailed than if law enforcement were to come into your home.  Evidence revealed could be:

  • Who you called, when you made the call, location data, and when you initially created or modified a contact for a person;
  • Text messages, emails, electronic faxes;
  • Photos and videos;
  • Google searches containing anything from private medical information to information about where and when you are traveling;
  • Privileged work files with confidential client information.

Access to this type of information could ruin reputations, expose business secrets, and release endless streams of private data.  Repercussions could run deeper than a lost job, or embarrassment in the community.  As a criminal defense attorney, I have had experience spotting issues like Fourth Amendment violations and have fought tirelessly to protect my clients due process rights.

The exception to this law:  “A warrantless search is reasonable only if it falls within a specific exception to the Fourth Amendment’s warrant requirement.  The well-established exception at issue here applies when a warrantless search is conducted incident to a lawful arrest..although the search incident to arrest exception does 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.”

A lot of words that when simplified mean that while an arrest is going on, law enforcement may look at the arrestee’s cell phone ONLY if the circumstances are an emergency.

The Bottom Line:  These search and privacy issues will continue as our technology advances and new Fourth Amendment questions will be raised for judges to rule on.  If you are arrested, you need the best criminal defense attorney that will have the ability to raise these questions and knows the latest case law to insure you get the best defense and might be able to file Motions to Suppress to get evidence thrown out to protect your privacy rights. Put my number in your phone and call me, I will help you.  513-260-2099