Do the police need a warrant before searching my cellphone?

Generally, yes. In 2014, the U.S. Supreme Court ruled unanimously that police may not ordinarily go through the contents of your phone without first getting a warrant. That said, they could still do so if they could show it was an emergency or that you would otherwise delete evidence of criminal activity.

In 2014’s Riley v. California, the high court focused on the Fourth Amendment’s prohibition on unreasonable searches and seizures. The justices concluded that the Founding Fathers would have been horrified if the government were allowed unfettered access to something as deeply personal as the contents of a person’s cellphone.

Today’s phones are now “a pervasive and insistent part of daily life,” according to the ruling. The contents of your phone could reveal all sorts of private information, from your banking habits to your location at any given moment. Much of Fourth Amendment jurisprudence is aimed at keeping the government from having easy access to your private business.

In Riley, the Supreme Court was asked to approve warrantless searches of cellphones whenever someone is arrested. The state argued that cellphones are no different from any other item you might have in your hand or pocket upon arrest, and police have traditionally been allowed to search people’s belongings upon arrest.

But the reason police have been allowed to perform such searches is that the officers have a right to identify weapons and other threats. The high court rejected the idea that the police need to assess the contents of a phone in order to identify potential threats to officers.

The potential threat to privacy though is significant. Considering how much information is on your phone, the Court noted that the police could conceivably get more evidence from your phone than they could from searching your home. This cannot be what the Founding Fathers intended, they concluded.

What about location data?

Warrants are also generally required before law enforcement can seek out your location data from your cellphone service provider. This is because location data could create a “near perfect” tool for government surveillance.

In 2018, the Supreme Court ruled 5-4 in Carpenter v. U.S. that the police must get a warrant before obtaining location data from third parties like cellphone service providers. Until this ruling, many law enforcement officers had assumed that they could obtain location information from third parties without a warrant because the information was being kept as routine business records.

The location data used against Mr. Carpenter had been obtained via a simple court order. The Supreme Court made it clear that officers must obtain a warrant first, which requires probable cause that you are engaged in criminal behavior.

In both of these cases, the high court recognized that modern-day cellphones are a technology that the Founding Fathers could not have foreseen. Writing for the majority in Carpenter, Chief Justice John Roberts said the ruling was meant to “ensure that the progress of science does not erode the Fourth Amendment” and its privacy guarantees.

Further developments

Now, the ACLU, the Electronic Frontier Foundation, and others are urging the Supreme Court to go even further. They argue that the police should not be allowed to force you to disclose your phone’s password or other login information. Being forced to open your phone or computer for the police, the groups say, violates the Fifth Amendment’s protection from self-incrimination.

The case, Andrews v. New Jerseyinvolved officers getting a standard court order for the passcodes to two of Mr. Andrews’ cellphones. Mr. Andrews argued that the passcodes were protected information under the Fifth Amendment.

The Supreme Court has previously ruled that the Fifth Amendment protects people from having to answer questions when the answer could be incriminating. And, the courts have found as a rule that people can’t be forced to give up the combination to a physical safe.

The high court has not yet decided whether to hear Andrews v. New Jersey.

If the police have searched your phone without a warrant, it could be an important legal issue in any criminal case against you. Be sure to talk to an experienced criminal defense attorney about protecting your rights.

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