With rapid changes in technology occurring over the last decade, courts have had to grapple with how the right against unreasonable search and seizure applies to cell phones. It is important to know how to respond if an officer attempts to access your phone and how to prevent police from accessing incriminating evidence within it.

According to the United States Supreme Court case Riley v. California, a warrantless search and seizure of the digital contents of a cell phone during an arrest is unconstitutional in violation of the Fourth Amendment. As stated in the majority opinion authored by Chief Justice Roberts, cell phones in the modern age hold a plethora of personal and private information, which is distinguishable from the traditional items that can be seized on a person during arrest.

What to do if an officer tries to access the contents of your phone without a warrant during an arrest:

Lock your phone with a passcode:

If your phone is locked when police place you under arrest, they cannot compel you to unlock the phone for them without a search warrant. This ensures that no matter what, the police cannot access the digital data on your phone without a constitutional violation. If you don’t have a passcode on your phone, it would be highly beneficial to put one on.

If an officer asks to search your phone, always deny consent:

If you neglect to lock your phone, or don’t have a passcode on it, it is crucial to politely but firmly verbally deny consent to a cellphone search. If you do this, the officers should respect your denial of consent and attempt to obtain a search warrant before accessing your phone.

Taking the matter up in court:

If the officer ignores your denial of consent and proceeds to search your phone during your arrest, you can contest the actions and any evidence obtained from the illegal search in court. This is when it becomes crucial for you to have refused consent loudly and clearly. If this was done, then the audio will likely be recorded by the police body cameras and can be used as evidence of officer wrongdoing in court.

Exigent circumstances – when can police search your phone without permission:

Overall, the court ruled that the search of a cellphone during an arrest fails the warrantless search test established in the Supreme Court case Chimel v. California. The exceptions to this test are known as exigent circumstances. These circumstances are when people are in imminent danger, evidence faces imminent destruction, or a suspect’s escape is imminent. In most cases, the search of a cellphone’s contents to a person being placed under arrest will not fall within these categories.

It is important to understand your rights when involved with the criminal justice system. If you think that your rights were violated during an arrest and are facing criminal charges, contact Bruckheim & Patel to have one of our criminal defense lawyers in Maryland and the District of Columbia provide a free, confidential evaluation of your case.