When it comes to police searches, most people are not completely aware of what police can and cannot do. At one end of the spectrum, some people just automatically comply with police instructions when they want to search or seize evidence. At the other end, some are firmly convinced that they have personal liberty over everything and that police can seize or search nothing. This is even more pronounced when you are dealing with something like your cell phone that can hold some of your most personal information.

When dealing with your cell phone, the truth is somewhere in the middle. This is where you need to know something about the Fourth Amendment to the U.S. Constitution. However, while the Fourth Amendment prohibits illegal searches and seizures, you should also know that some searches are allowed.

You may be understandably afraid of police accessing the contents of your cell phone. If you are like most people, practically your entire life is on your phone, especially in texts and images. Further, when police can see something on your phone, it only gives more reason for additional searches elsewhere. If you have been arrested and the police searched your phone, it’s in your best interest to contact a Wisconsin criminal defense lawyer as soon as you can.

The Fourth Amendment Governs Cell Phone Searches

To paraphrase, the Fourth Amendment provides that:

“The right of the people to be secure…against unreasonable searches and seizures, shall not be violated…but upon probable cause, supported by Oath or affirmation.”

In terms of how this all impacts your cell phone, the simple answer is as follows: Police need a warrant to search your cell phone unless other circumstances apply. However, police are going to do everything that they can to try to make sure that those exceptions apply.

Always Ask for a Warrant!

So if a police officer asks for your cell phone, ask for their search warrant. Even if police arrest you, they cannot search your phone without it. However, there are some exceptions to the rule that police will try to cite when your defense attorney challenges the evidence in court.

When the police stop you, they can only access what you give them access to, so your answer when they ask to see your phone should be a hard “no” unless they can show you a valid search warrant. This is the exact point where you need to call a criminal defense attorney to protect your legal rights.

Usually, Police Cannot Take Your Cell Phone When They Arrest You

When it comes to the Fourth Amendment, it is ultimately the United States Supreme Court that decides what an illegal search is. Law enforcement in the state must act according to what the Supreme Court has said. Fortunately for criminal defendants, the Supreme Court has spoken on the issue. In Riley v. California and U.S. v. Wurie, the Supreme Court made a very clear statement: When the police arrest you and take your cell phone, they cannot search it without a warrant.

However, once a Supreme Court decision is handed down, states may interpret it in different ways. In Wisconsin, one current issue right now involves what happens when you willingly give a police officer your phone. For instance, there is a current case in front of the Supreme Court in which a defendant gave police officers his phone to show them texts, and then they extracted data from his phone and passed it along to another agency.

State v. Carroll

Another issue in Wisconsin arose in the case of State v. Carroll, a decision that Wisconsin courts still view as valid. Here, the defendant was arrested at a gas station. His flip phone fell on the ground during the arrest, and it opened up to an image of the defendant smoking a long, thin, brown cigar-like object. The police officer took the phone and searched the images at the scene of the arrest, and they showed evidence of the defendant’s drug use. When the defendant tried to claim that police illegally searched his phone, the Wisconsin Supreme Court said that they had the right to take his phone and search it because the evidence was in plain view.

When Police Can Search Your Cell Phone

Here are a few possible exceptions to the rule that the police cannot search your phone without a warrant:

  • You have given the officer consent to search your phone.
  • There is an emergency circumstance that would cause the officer to believe that the evidence would be imminently destroyed.
  • The officer needs to search because people are in imminent danger.
  • Evidence on your phone is in plain view of the officer.

What to Do When Police Want Your Cell Phone

With all of this in mind, here are few tips for you if the police have either searched your phone or are trying to do so:

  • The most important thing is for you not to give up your rights at the scene when the police are trying to take or get onto your phone. When in doubt, your answer should be “no.”
  • Do not trust the police at the scene or think that you can win them over by showing them your phone. Once you open your phone for them, you open up a whole can of worms.
  • Immediately contact an attorney if you have been arrested or police have tried to take or access your cell phone. Your attorney could ultimately challenge the evidence as illegally seized.
  • The longer that you wait to hire an attorney, the greater the chance that you could make a mistake that would give police evidence that they could use against you.

Contact an Appleton, WI Criminal Defense Attorney

If you are reading any of this and recognize that you are or could be in the position of law enforcement trying to search your phone, you need legal help immediately. Call an Appleton criminal defense lawyer at the firm of Hogan Eickhoff at (920) 450-9800 or contact us online to schedule your free initial consultation.