The Basics - Search and Seizure and Cell Phones

Most people understand that the Constitution prevents police officers from searching their home or person without a warrant or probable cause. But over the years, courts have carved out certain exceptions to that rule. Police may enter a home if they believe there is an imminent threat of danger to someone. While police may not be able to search your entire home during an arrest, they can search the immediate area around you. In recent years, as more and more people use computers and cell phones, new issues related to search and seizure have been analyzed by the courts. So far, these decisions uphold the idea that police cannot search your electronics without probable cause.


Searching Cell Phones

Virtually everyone has a cell phone, and if you are arrested for any crime, the police will take your cell phone into custody and hold it with your other personal possessions until you are released. But the 2013 U.S. Supreme Court case Riley v. California established that law enforcement officials may not search the electronic contents of a cell phone without a warrant or  probable cause.

This both clarified what police are able to do with cell phones and muddied the waters a bit. The Supreme Court was clear that police may examine the physical phone as much as they wish. But something truly incriminating would have to be on the outside of the phone in order to provide law enforcement with a reason to search it without a warrant.

Police may be able to obtain a warrant if as part of their investigation they believe the phone’s memory contains information related to suspected criminal conduct they have a reasonable suspicion of. They will likely also be able to search the phone if they believe doing so is necessary to prevent the imminent harm to another.

However, any search of the phone will have to be related to the arrest and what the police observed prior to it. If the police observe the phone used as part of a suspected drug deal, a court will probably have no problem issuing a warrant allowing the police to search it. But if police stop a suspect with a small amount of drugs and he or she was not using the phone at the time of the arrest, a court will almost certainly not grant a warrant allowing authorities to search the phone’s electronic contents. A court would likely also suppress any evidence that police obtained from searching a phone without a warrant in such a case.

Need Legal Help?

Search and seizure issues are among the most complicated in criminal defense cases. The slightest difference in the facts of a case can result in completely different outcomes That’s why it’s so important to contact an experienced criminal defense attorney if you or a loved one have been charged with a crime in the Chicago area, and you believe the police may have violated your constitutional rights. For more information, contact Barney & Hourihane today for a consultation.