Cell Phone Searches

We all use our cell phones daily. Most of us rely very heavily on these devices. Similarly, most of us have massive amounts of highly private personal information on our cell phones. We text our best friends, send professional emails, take pictures, store passwords and bank account information, etc. So, what are the limits to allowing police officers to conduct cell phone searches? Are there restrictions? Let’s take a look.

Search Incident to Arrest

Generally, when a defendant is lawfully arrested, the police may conduct a warrant-less search of that person, the property found on this person, and the area in the immediate wingspan on that person. This is a specific exception to the warrant requirement of the Fourth Amendment. So, does this search incident to arrest exception include cell phones? Thankfully, no, it does not.

In 2014, the Supreme Court ruled that police cannot search a cell phone under the search incident to arrest exception to the Fourth Amendment’s warrant requirement. While they can search the content’s of a wallet or purse found on an arrestee, they cannot search the contents of that person’s cell phone, even if it was found on their person. This 2014 Supreme Court ruling was great news for individual rights and Fourth Amendment protections.

Probable Cause and Cell Phone Searches

So now we know that a police officer cannot perform a warrant-less search of someone’s phone simply because they have been arrested. But what if there is probable cause to search the phone? Can they get a warrant in that case and search a person’s smart phone? In other words, when a person commits a crime, is there probable cause to search the person’s phone for evidence?

There are many circumstances under which there will be probable cause to search a suspect’s cell phone. Commonly, there may be probable cause to search in phone in crimes involving transactions or in crimes committed by a group of people (since the co-conspirators may communicate using a phone).

The bad news is, court’s views of this vary widely. Across the country, different courts take on different views of this issue. Some require specific evidence of a nexus between the crime and the phone in order to find probable cause to search a phone. Other courts find probable cause based mainly on the type of offense at issue (e.g., rape versus shoplifting versus stalking).

Questions that courts across the country consider when analyzing probable cause to search a cell phone include things like: Does the nature of the suspected criminal activity support a conclusion that there would be incriminating evidence on the defendant’s cell phone?  Could the officer reasonably infer that the suspect’s cell phone would contain evidence of recent criminal activity? Are cell phones used as a part of the facilitation of that offense?

If you have been arrested or charged with a crime in North Carolina or South Carolina, contact a criminal defense lawyer to discuss your options.