The Fourth Amendment of the U.S.Constitution gives you certain protections against unreasonable search and seizure. Technology, however, changes very quickly, and the laws have to race to keep up. The U.S. Supreme Court has only recently clarified the rules regarding the search of cell phones. Can an officer simply look at your phone without a warrant? What should you do if an officer asks to see your phone? This is what you should know.
Your Cell Phone Is More Like A House Than A Box
If you've been arrested, the police have a right to search your pockets and look at what's in them. If you have a container in your pocket, like a cigarette box, they can open it.
However, the courts have long held that searching someone's pockets and using what's in them against him or her is far different than going through his or her house for incriminating evidence. With that in mind, the Supreme Court essentially ruled that your cell phone has more in common with a house than it does a box, and that a warrant is needed to search it.
So that settles the issue, right? Not exactly.
Exigent Circumstances And Other Exceptions
In some cases, police can still examine your cell phone without a warrant. If your phone is seized when you're arrested or detained, officers can look through it if they reasonably believe that there are "exigent circumstances."
Exigent circumstances exist only when the police believe that they have to act immediately order to protect someone from harm, stop a crime in progress, or keep evidence from being destroyed. For example, if the police believed that your cell phone could lead them to a missing child, a warrantless search could be allowed.
You should also be aware that Fourth Amendment protections aren't as strong when you are at the nation's borders. This has been interpreted to include times when you are in an international airport. At those times, your phone can be searched even if there is no reason to suspect that you've done anything illegal.
However, the easiest way for police to gain the ability to search your cell phone is with your express permission. Many people have been misled or pressured into giving police access to their cell phones, so it is vitally important to the preservation of your rights that you not make the same mistake.
How To Respond To An Officer Who Wants To Examine Your Cell Phone?
It's important that you leave no doubt about your permission to view the contents of your cell phone. If the officer says, "Do you mind if I look at this?" reply politely, but firmly, "I'm sorry, but I don't give permission for you to search my cell phone."
If the officer persists to question you about the cell phone, suggests that you are hiding something, or makes additional comments about your phone, simply repeat your refusal. When in doubt, ask if you are being arrested or detained. If the answer is yes, ask to speak to your attorney. If the answer is no, thank the officer and leave.
If you are arrested or detained, and you have reason to believe that it's important to protect information on your cell phone, you should contact your attorney immediately to discuss the issue. In addition, make your criminal defense attorney aware of the situation if you believe that the police have searched your phone without a warrant and used that information to charge you.