Cell Phones and Searches

Searching Phones

The Florida Supreme Court held in 2013 that it is unconstitutional to search an arrested person’s cell phone without a valid warrant. The ruling applies to searches of cell phones made after the phones have been separated from their arrested owners.

Generally, a police officer cannot conduct a search without a warrant. However, an important exception exists for searches made incident to arrest. This means that during a lawful arrest, the law enforcement officer can search the arrested person for concealed evidence, weapons, or contraband. This exception is to protect the safety of the officer and to prevent the destruction of evidence.

Law enforcement officers may seize cell phones upon arrest to stop the arrestee from erasing data contained on the phone. But they do still need a search warrant to search the phone. Seizing the cell phone is sufficient to protect the government’s interest in preserving evidence. An officer does not need to search the phone to ensure that evidence is not destroyed, but only needs to remove it from its owner.

However, there are some exceptions. An officer can search the phone if the owner of the phone consents to the search, or if there are exigent circumstances that prevent the officer from obtaining a warrant in time.

Searching Phone Records

In contrast, the Court of Appeals for the Eleventh Circuit ruled in May in United States v. Davis that law enforcement officers do not need a warrant to check cell phone records. They do, however, need to appear before a magistrate and request documentation to allow them to obtain the phone records.

To obtain a search warrant, an officer must show probable cause. But to get the proper documentation to search cell phone records, officers do not need to show probable cause. Instead, they must only show that the records are relevant in some way to their investigation, which is a significantly lower threshold to meet.

This is because the records belong to the cell phone companies, who are third-party service providers, rather than to the customers. The customer knows how cell phone towers work and that phone service providers record cell tower usage. Thus, the court reasoned, the customer has no reasonable expectation of privacy in business records.

If you have been arrested for a crime, an experienced attorney can help you to understand your rights. It is important to know how everyday objects such as cell phones can affect your case. Please contact West Palm Beach criminal defense attorney William Wallshein for a free initial consultation.