Do Police Need Warrants to Search Cell Phones?

Do Police Need Warrants to Search Cell Phones?

In the unfortunate event of your arrest, is your smartphone safe from prying eyes? Even if you don’t have anything illegal to hide, it can still be extremely awkward and uncomfortable to have prying eyes look through your personal photos, emails, text messages and other sensitive data. It opens up the floodgates for misinterpretation, too. But the law is still catching up to new technology, and very often electronic devices are mishandled by law enforcement during arrests. In San Diego, they’ve created strict legislation to prevent free access to smartphones in an effort to boost privacy.

Why Cell Phone Privacy Matters

Maybe you Google searched forensic crime information while watching CSI, but to an outsider, that search looks like you’re attempting to figure out how to bury a body. You’re certainly no murderer, but if you’re falsely arrested for a murder, that information could interfere with your ability to clear your name.
It isn’t just about law; cell phone privacy matters because your overall privacy matters, too. There’s no need for the police to read through your text message argument with a spouse or a protracted back-and-forth with a daughter who’s struggling.

Smartphones: a Virtual Safe?

Today’s smart devices frequently contain all of our most sensitive information. That includes cell phone records, financial information, credit card numbers, intimate or personal photos, bank account information, purchasing information, and access to all of our social media platforms. When someone gains access to your smartphone, they are essentially gaining access to nearly your entire identity; this is the reason Apple implemented iCloud in the first place. It’s not wise to give anyone free and open access to all that information, whether they’re your spouse, your child, your accountant or even law enforcement officials.

“Smartphone” is Misleading

What’s leading the change is a recent case out of San Diego where the Supreme Court ruled that smartphones must be considered for search in the same way as houses — through a search warrant. The rationalization is that smartphones are really not phones at all; rather they’re very small computers, and thus, should require permissive access rather than free access by law enforcement officials.
Chief Justice John Roberts pointed out that the only functional difference between a computer and a smartphone is that one can make calls, while the other can’t — a point that becomes even more muddied when you consider programs like Skype and FaceTime.

The Lead-Up

Two individual landmark cases led to the appeal. In the first, police searched Brima Wurie’s smartphone for incriminating evidence after a drug arrest. In the second, police used photos found on David Leon Riley’s smartphone to prove gang affiliation. Though the prosecution was able to secure a win through other evidence, the use of smartphone data significantly endangered the case and almost led to acquittals.

Keeping Your Smartphone Safe

Approaches to smartphone information vary widely across the country. In some areas, police may demand that you unlock your smartphone and allow them access to it from the moment of arrest. In other areas, laws are much, much stricter to protect the individual. The best step you can take to keep you and your privacy safe is to keep any extremely sensitive information off of your smartphone. Periodically wipe the device completely. If you are arrested, ask to speak with a lawyer before you agree to give anyone access to your device.