Are the Police Permitted to Search Your Cell Phone?

October 5, 2016

Warrant May be Necessary to Search Cell Phone Content

We rely on our cell phones for everything and there is no limit to the information we store on our cell phones. It is of course for this reason that when police perform an arrest the first thing they want to search is your cell phone.

But are police permitted to search your cell phone? Recently the Supreme Court has ruled on a cell phone search case that has had major ramifications across the country including in New Jersey. In Riley v California 134 S.Ct. 2473 (2014) that police must obtain a search warrant before searching digital data on arrestee’s cell phones. In the Riley case an individual was stopped for a traffic violation, and was arrested on a weapons charge. The cops took the individual back to the police station and searched his phone, obtaining evidence that he was involved in a recent shooting.

At a suppression hearing the arrestee argued that all evidence obtained from his cell phone should be suppressed. The state argued the search of the phone was required under the same logic applied physical searches of an arrestee’s grab area, stressing that evidence could still be tampered with by remote swiping or data encryption.

The court rejected this argument stating that search of digital information on a cell phone “implicates substantially greater individual privacy interests than a brief physical search.” The court noted how cell phones are uniquely private and possess an “immense storage capacity” and rejected the argument that a phone could be searched during a custodial arrest.

The Riley court did add however that there are case-specific exceptions to the warrant requirement that would enable police to conduct cell-phone searches incident to an arrest. One example of an exception that may permit a warrantless search of a phone is what the courts call “the exigencies of the situation.” Exigencies of the situation simply means certain emergency situations, most notably the potential for evidence tampering, would make a reasonable officer believe that evidence would be destroyed.

A possible example is if a cop pulls someone over and is about to perform an arrest and sees someone text “destroy.” Would this permit a search under the exigent circumstances exception? Can the cop search because he reasonably believed that arrestee had remote swiping or data encryption capabilities on his or her cellphone? For a cop to perform a warrantless search of your phone Whether or not the police would be permitted to perform a search in this scenario or if the evidence found on the phone would be suppressed remains to be scene. At the time of this writing few New Jersey courts have handed down rulings on searches of cell phones. In 2013 the New Jersey Supreme Court ordered that police must obtain a warrant before securing tracking information from cell phone providers. Guidance from the New Jersey legislature has still been non-existent. seizure

The standard we are left with is whether the cops actions were objectively reasonable in the totality of the circumstances. This is a very vague standard and the facts of any case will determine whether the police search of a cell phone may have been permitted under exigent circumstances or another exception to the warrant requirement. As such effective legal counsel at any suppression hearing where a court will assess whether the evidence obtained from your cell phone is admissible is a must.

Call the team of NJ criminal defense lawyers at Lubiner, Schmidt & Palumbo at (908) 709-0500 if you or a family member has been the subject of a questionable police search. The initial consultation is free. The attorneys at Lubiner, Schmidt & Palumbo are seasoned criminal defense attorneys with an extensive background in evidence suppression and search and seizure law. Put us to work on your case today!

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