The Fourth Amendment to the constitution states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In other words, the police need to obtain a warrant before they can legally search your body, home or personal effects. Despite this, the Supreme Court has established several exceptions that allow officers (in certain situations) to conduct a search of a person and his or her personal belongings without first acquiring a warrant.
What About Your Cell Phone?
A recent supreme court case has affirmed that the police DO NOT have the right to search your cell phone, or your cell phone records without first obtaining a warrant or your consent. This includes your text messages, phone calls, photos, or anything else.
In the case of Riley v California, the police arrested a person as a result of a traffic violation. They then proceeded to search his cell phone where they found photos linking him to a shooting. On appeal, the supreme court unanimously held that the search of his cell phone was unconstitutional.
While the Supreme Court’s ruling in Riley v California is not specific, it implies that the same restriction may apply to a search of your laptop, iPad, digital camera, iPod and other devices as well. However, it may not apply to other personal items such as your bag, pockets and cigarette cases.
Cell phone and other devices are treated differently from other personal property that police are allowed to search because they most often contain far more personal information. Searching your phone is considered as big of an invasion of privacy as searching your home. Therefore, if the police want to search your phone, they need to get a warrant first.
For example, let’s say you are arrested by the police for some violation and the police search you and find a cell phone. They then open your phone and begin to look through your text messages for other evidence. What can you do? You can ask them if they have a warrant.
The Fourth Amendment to the Constitution provides you with protection from any unreasonable search and seizure. In support of the Fourth Amendment, the Supreme Court established the Exclusionary Rule, which prohibits the use any illegally obtained evidence in court.
This means that if the police search your phone without a warrant, any evidence they find cannot be used against you in court. Moreover, any additional evidence the police discover as a result of searching your cell phone will be considered tainted and, therefore, may be inadmissible in court.
The Fifth Amendment gives you the right to remain silent and to not be forced to give evidence that may incriminate you. Furthermore, you have the right to a criminal defense attorney and should contact one whenever you are questioned by police and before you answer any of their questions or consent to any search.
So, if you find yourself being detained by the police who are asking to search your phone, remain calm and politely state, “I do not consent” and then call an attorney as soon as you have the chance.