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Can police search your cellphone if you are arrested?

Can police search your cellphone if you are arrested?

The U.S. Constitution protects Americans from unreasonable searches and seizures. In order for law enforcement to conduct a search and seizure, a warrant needs to be granted by a judge after police prove that there is probable cause to believe that a crime has been committed. The warrant must also specifically identify what evidence police are looking for and where the search will be taking place.

An exception to this constitutional protection occurs when a person is arrested. At that time, police have authority to search the suspect’s body for weapons and other evidence that could potentially be used against them in a subsequent criminal case. However, the digital age has complicated a once-straightforward policy.

Today, many Americans carry cellphones that are really more like tiny computers and can house thousands of photographs, messages, emails and other pieces of information. Because of the vastness of their storage capabilities, civil liberties advocates argue that cellphone searches should require warrants.

Of course, to police, these handheld computers can be like hitting the evidentiary jackpot. Law enforcement advocates argue that cellphone searches during arrests preserve evidence that would likely otherwise be erased and so should be fair game.

They also allege that text messages, emails and other data from cellphone searches have linked arrestees to serious crimes such as drug and gang activity, prostitution rings, and human trafficking. But those against the searches bring up the fact that even though millions of Americans are arrested each year, many less are actually charged with crimes.

From a criminal defense standpoint, it seems obvious why police would want the power to investigate cellphones during arrests. However, it’s important to keep in mind the potential abuse that could occur. Because it is possible to be arrested for something as minor as an expired license, police could find an excuse to conduct an arrest merely to conduct a cellphone search without a warrant.

The Supreme Court will likely issue a decision in the case this summer.

Source: NPR, “Weighing The Risks Of Warrantless Phone Searches During Arrests,” Nina Totenberg, April 29, 2014

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