Can the Police Search Your Cell Phone When They Arrest You?

Can the Police Search Your Cell Phone When They Arrest You by Saul Bienenfeld

If someone is arrested, and he or she is carrying a cell phone at the time, can the police look through the phone to search for additional evidence?

The Supreme Court decided in 2 recent cases that the answer is “no.” In both Riley v. California and U.S. v. Wurie, the Court ruled that police must first obtain a valid warrant to search the phone. This means they have to convince a judge of the likelihood of finding further evidence of criminal behavior upon accessing the device.

  • Exception: The Supreme Court carved out an exception to the warrant requirement, for times in which the police reasonably believe that there is an emergency situation ongoing in which public safety is endangered. If this is the case, police may search the arrested individual’s phone specifically to try to resolve this emergency. Examples of such situations include instances where police are trying to find a missing child believed to be kidnapped or attempting to find the location of a bomb which has been set to explode at a certain future time.  

The dilemma for the police is that, while the police is taking steps to obtain a warrant, the arrested person may have accomplices, friends or family on the outside who can wipe clean any incriminating evidence from the phone remotely. The solution is for the police to turn the phone off, remove its battery and place it in a special bag which prevents radio waves from being transmitted through it. This should preserve any evidence that is stored in the phone until a search warrant can be obtained and acted upon.

One intriguing scenario that the Court has not yet taken up, although it certainly will in the future, is what the police are allowed to do if the cell phone receives incoming messages or calls from an accomplice. Can the police, pretending to be the individual arrested, respond to the messages or even pick up and pretend to be the phone’s owner in an attempt to uncover further information about a criminal action? While the answer is unclear, it would seem that nothing would legally prevent the police from engaging in this tactic. It is not entrapment, as the police are simply responding to someone already planning on committing a crime.

For example, the cell phone of a person arrested might receive a message from an associate detailing the time and place of a drug deal. The police are within their rights to show up at the time and place detailed and arrest the individual who sent the message, provided he or she did in fact arrive at the scene possessing drugs or other unlawful materials.

If you find yourself in trouble, it is important that you know your rights and have a defense attorney who can ensure you are being treated within the bounds of the law. What do you need to know about your rights? Contact my office as soon as possible to ensure you have the best possible legal protection from the outset.

Saul Bienenfeld, Criminal Defense Attorney

Saul Bienenfeld P.C.
450 Seventh Ave.
Suite 1408
New York, NY 10123
212-363-7701
sbienenfeld.com

 

About Saul Bienenfeld
Former Assistant District Attorney For The Special Narcotics Bureau, with Over 25 Years Experience As A Successful Criminal Defense Attorney in New York. When you're in trouble, you better call Saul! The Law Offices of Saul Bienenfeld P.C. is dedicated to helping clients receive justice. As your personal law firm, we take the time necessary to fully understand your situation, ensuring that all of your legal needs are met. Your peace of mind is important to us, which is why we are always available to assist you. As a law firm designed specifically for the people, the Law Offices of Saul Bienenfeld P.C. is always ready to help out his fellow New Yorkers. We take each of our cases to heart and work as a team for you.

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