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Cell Phones, Off Limits?

Friday / March 6, 2015

When an officer lawfully arrests someone, that officer is allowed to search a few areas in order to protect him/herself. The officer can perform a pat down of the arrestee to make sure there are no hidden weapons that could be used to harm the officer. Moreover, when an officer lawfully arrests a person in a vehicle, the officer has a few options as far as what to do with the arrestee’s car. One of those options is to impound the vehicle. With this option, the officer is required to perform an inventory search. This search has a few purposes: to protect the officer from liability claims in the future; to discover hidden contraband; and to confirm that the vehicle has all its components at the time of seizure. But what if the officer finds a cell phone during this search or during a regular pat down; is an officer lawfully allowed to search the cell phone?


Facts similar to these happened to David Riley while he was driving in San Diego, California. After Riley was pulled over and during the inventory search of Riley’s vehicle, the officers found two guns and Riley was arrested. Riley was patted down and the officer found a cell phone in his pocket. The cell phone was analyzed by a gang unit and based on the material found, Riley was tied to a recent shooting, resulting in separate charges. The evidence discovered in the cell phone was submitted into evidence and a jury convicted Riley on the shooting charges.


In the October 2013 term, the United States Supreme Court was asked in Riley v. California if this admitted evidence violated Riley’s Fourth Amendment right to be free from unreasonable searches. Their answer: Yes. The Chief Justice explained that when a pat down is performed of an arrestee, it is to make sure the officers are safe from any weapons. The digital data in a cell phone cannot be deemed a weapon to harm the officer. The Court explained that the times have changed and the items that people carry around with them now are vastly different than fifty years ago. Fifty years ago a person may have carried around a wallet with some cash, a phone number, and photos of loved ones. Today, most people still carry around a wallet, along with their cell phones, which contain a massive amount of data that stores an enormous amount of personal information. To allow officers to search people’s cell phones without a warrant is a violation of privacy and a violation of the Fourth Amendment. The Court offers a few alternatives for officers: put the cell phone in a “Faraday bag,” so the phone cannot connect to the internet and no third party can delete the potentially incriminating information; but most importantly and practically, the Court tells officers to simply “get a warrant.”


Remember that officers cannot search your cell phone unless they get a warrant. If you or anyone you know has been charged with a crime, immediately seek an attorney’s help to ensure the accused’s rights are protected. To schedule a no obligation consultation with my office, visit my website at: or by calling me at 480-331-7568.


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