Search Warrant Now Required for Cell Phone Search of Arrestee

As an Orange County criminal attorney who handles drug and gang cases, I’m frequently asked about search warrants of cell phones after an arrest.  In drug cases, the police will confiscate the cell phone the alleged drug seller has in his possession, and go through the text messages looking for evidence of any indicia of drug sales.  This information is then documented in the police report and used against the defendant in his criminal case.

In a gang case, the police will go through the defendant’s contacts, pictures and text messages.  The police look through the contacts for monikers or other individuals who may belong to the same gang as the defendant.  Police also look through all the pictures to see if the defendant is shown in any pictures flashing “gang signs” or wearing clothing that is associated with the gang.  Again, this information is documented in the police report and used against the defendant in court.

Finally, the Supreme Court of the United States has spoken.  Two separate cases were decided by the high court, one which was a gang case out of California that was reversed,  Riley v. California.  In the Riley case, David Riley was pulled over for driving with expired registration tags.  When the officer contacted Riley, he soon learned that Riley was driving on a suspended license, arrested and searched.  During the search warrants of Riley, the officer found items associated with the “Bloods” street gang, and seized the “smart phone” that was located in his pocket. The officer then started accessing information on the phone and noticed words followed by letters “CK”, which stood for “Crip Killers”.  Two hours after the arrest, a gang detective thoroughly searched the phone and found videos showing gang members with guns, and pictures of Riley standing in front of a car that was suspected of being involved with a shooting a few weeks earlier.  Riley was ultimately charged with attempted murder, shooting at an occupied vehicle and assault with a semi-automatic firearm.  The evidence taken from the phone was used during his criminal trial, and Riley was convicted.

In a unanimous decision, the Supreme Court has ruled that the Fourth Amendment is still sacred to the privacy rights of individuals, especially those who are arrested and have their cell phones confiscated and searched by law enforcement without a warrant.  Quoting the Fourth Amendment, the court stated:

“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons and things to be seized.”

The Supreme Court discussed in great detail the problems with cell phone search warrants without a warrant due to the volume of information that people keep on their phones.  The high court explained:

“Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.  A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom….Modern cell phones are not just another technological convenience.  With all they contain and all they may reveal, they hold for many Americans “the privacies of life”.  The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.  Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple —  GET A WARRANT. “ [emphasis added]

For more information on search warrants, contact the Kenney Legal Defense Corporation at (855) 505-5588 or visit the firm’s website.


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