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When Can Police Search Your Smart Phone?

Updated: Sep 20, 2023 @ 5:22 am

Less than 1 minute Reading Time: Minutes

Smart phones today hold an incredible amount of information. They serve as people’s cell phones, picture albums, notepads, and digital libraries. Few of us will ever go back to the way life was before this technology entered the market. People shop, talk, and record conversations on their phones. Some people seem to live on their phones.

However, it’s precisely because our phones contain so much information that police are eager to peek at the contents. If you are stopped for suspicion of a crime, the police might ask to see your phone.

We strongly encourage you to say “no.”

Let’s review the relevant laws surrounding cell phones.

What Evidence is on a Cell Phone?

Police are hoping to find evidence that you were involved in a crime. For example, they might look for:

  • Incriminating text messages or emails
  • Contact information
  • Call log (list of incoming calls or the calls you made)
  • Website search engine information
  • Pictures
  • Notes
  • Location information (where you’ve been)

Any of this evidence could prove useful in a criminal case. You might have sent text messages to someone right before he committed a crime. The police might suspect these messages show you were involved in some way, perhaps acting as the getaway driver.

The Constitution and Your Phone

Smart phones are the type of personal possession protected by the federal and state constitutions. If police want to look at the contents, they need a valid search warrant signed by a judge. And to get that, they need probable cause that your phone contains evidence related to a crime. Police have no right to just scroll through your messages as part of a fishing expedition.

When the Framers drafted the Fourth Amendment protection against “unreasonable searches,” they obviously were not thinking about smart phones. They were thinking about protecting books and papers. Nonetheless, this amendment applies to newer technology, just as it does to more traditional possessions like books.

You Should Not Give Consent

There are some exceptions to the search warrant requirement, and a big one is consent: you can legally give consent to the police to search your phone. You can be sure that they will ask for permission if they stop you.

It doesn’t matter if the phone is already unlocked—police can’t start scrolling through to find evidence. If asked, say, “No.” That’s all you need to say. You don’t need to answer why or explain yourself in any way.

Sometimes, people are stopped in their cars and the phone is on the dash. Your passenger might take the phone and hand it to the officer. They do not have the power to give the police consent to search your phone. So make sure to speak up immediately and say, “That’s my phone! You can’t search it!”

Other Exceptions to the Warrant Requirement

Apart from consent, what other situations allow the police to search through your phone without a search warrant? Under the law, police can sometimes search if “exigent circumstances” justify it:

  • Protect an officer from imminent danger
  • Protect members of the public from harm
  • Prevent the destruction of evidence
  • Pursue a fleeing felon

Some police are tempted to claim these exigent circumstances exist, especially possible destruction of evidence. The officer might grab your phone or, if you are arrested, search through it after booking without your permission or knowledge.

In our experience, it is the rare situation where exigent circumstances actually exist. Once police have your phone in their possession, they can certainly request a warrant from a judge if they want to search it.

What Happens if the Police Access My Phone without a Warrant?

We can ask a judge to suppress any incriminating evidence the police found, as well as any additional evidence they found relying on evidence obtained in the search of your phone. A judge should agree to suppress this evidence unless exigent circumstances existed.

Sometimes, knocking out evidence can completely undermine the state’s case against you. It’s possible to get charges dismissed because the prosecutor can’t introduce most of the incriminating evidence in their possession.

Let us know if the police grabbed your phone or if someone else gave them permission to look at it. Motions to suppress [evidence] must be made in a timely manner.

Need Legal Advice for a Criminal Case?

Call Defense Attorney Tad Nelson Today!

One of the worst mistakes criminal defendants make is handing over evidence for a consensual search. Instead, contact Tad Nelson at the first possible opportunity. We have law office locations in Houston, Galveston, and League City.

Schedule your free consultation today. Call us at 713-802-1631.

Houston DWI Lawyer Tad A Nelson is Board Certified in Criminal Law by the TBLS.

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