To what extent can the police search your phone without a warrant?
Earlier this year, the Federal Court of Appeals for the 7th Circuit ruled that police can conduct certain searches upon your phone without a warrant in the case of United States v. Flores-Lopez (click here to view the free Google Scholar copy of the Court’s opinion in that case).
In Flores-Lopez, the defendant was taken into custody and the police conducted a brief search of the defendant’s cell phone. In the legal field such a search is known as a “search incident to arrest.” The purpose of this search was to determine what the cell phone’s number was to aid later in obtaining records from the defendant’s phone company.
In Tennessee, as in many states across the country, the issue of whether and to what degree a cell phone can be searched without a warrant is a hot-topic of debate among lawyers. In Flores-Lopez, the defense argued that the search of the defendant’s cell phone was “unreasonable because [it was] not conducted pursuant to a warrant.” Many of my readers might already know what a “warrant” is, but suffice it here to say that a warrant is a judicial document authorizing a search. Warrants are often required for a search due to our constitutional right as citizens against unreasonable searches and seizures (pursuant to the 4th Amendment of the United States Constitution).
However, the Court in Flores-Lopez sided with the government in stating that a warrantless search such as in this case (searching the phone incident to an arrest to determine the cell phone’s number) was a minimally invasive search incident to arrest and was thus permissible. The Court went a step further and stated that more intrusive/extensive searches into a cell phone would also be constitutional, though it hinted that there were limits to what searches police could conduct incident to an arrest without a warrant. The limits were not laid out in the case of Flores-Lopez – rather, the Court stated that it was a question “for another day.”
An additional note of interest is that the Court mentioned phones that were passcode protected, but did not state whether materials that were passcode protected on a phone could be searched incident to arrest. However, it seems that the Court might have considered a warrantless search on a passcode protected phone to be more intrusive – although the issue is not settled, it might be ruled in a future case that searching a passcode protected phone is too intrusive of a search to be conducted without a warrant.
The take-aways from this post are these: (1) if you are arrested, it is unclear to what extent the police can search your phone without a warrant, but the Court in Flores-Lopez ruled that your phone can be searched; and (2) it is not guaranteed that passcode protecting your phone will protect you from warrantless searches, but it might be the case that passcode protecting your phone might protect it from warrantless searches.
As a post-script, allow me to reassure my readers that the purpose of posts such as these is to enlighten my readers as to their rights and the state of the law, even if they are not guilty of any crimes. Passcode protecting your phone might not only help safeguard your legal rights, but has non-legal benefits as well (such as preventing friends or strangers from accessing your phone). However, with that said, the number of scenarios in which it might be legally beneficial for somebody not guilty of a crime to safeguard their rights are conceivably endless. Long-story-short, it is probably a good idea to passcode your phone if you have not done so already.
The author of TNLawyerLee is Nicholas W. Lee, Esq., an attorney in Knoxville, Tennessee. If you or someone you know need an attorney, please click here for Mr. Lee’s contact information and contact him today for a free consultation. Also, please feel free to visit Mr. Lee’s website, www.TNLawyerLee.com or follow his page on Facebook for updates as to his law practice or new posts to TNLawyerLee by clicking here.
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