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Old Pueblo Legal Observer

Can The Police Search Your Cell Phone?

Posted by Adam Page | Jul 02, 2015 | 0 Comments

The Fourth Amendment to the United States Constitution protects all individuals against unreasonable searches and seizures by the government.  Of course, at the time that the Fourth Amendment was drafted, the founding fathers had no way of imagining the various new technologies that today may be subject to government searches.  As technology has developed, courts have grappled with how to balance the government's interest in law enforcement with the individual's right to privacy.

The United States Supreme Court has tackled this question as it applies to many technologies.  For example, in Kyllo v. United States[1], the Court held that officers' use of a thermal imaging device to investigate what was occurring inside an individual's home was a search and that police should have obtained a warrant prior to using a device.  In United States v. Jones[2], the Court concluded that officers must have a warrant before placing a Global Positioning System (GPS) tracking device on a person's car.  

More recently, the United States Supreme Court has considered whether officers may search an individual's cellular phone without a warrant after an individual has been arrested.  The search-incident-to-arrest exception to the warrant requirement generally states that officers may search an arrested person, and items within the arrested person's immediate control, in order to ensure officer safety and prevent the destruction of evidence.[3]  In Riley v. California[4], the Court unanimously decided that officers cannot search an arrested person's cell phone.  The Court concluded that data stored on a cell phone cannot itself endanger officers.[5]  Once officers have seized and secured the phone, there is no risk that the arrested person would be able to delete any evidence from the phone.[6]  Moreover, the Court found that any concern about remote wiping of cell phones within officers' physical control did not justify a warrantless search.[7]  As such, the Supreme Court concluded that officers must obtain a warrant before searching an arrestee's cell phone.

This week, in State v. Ontiveros-Loya, Division 2 of the Arizona Court of Appeals applied the rationale of Riley to conclude that officers' search of a cell phone outside of the arrestee's immediate reach and without a warrant was unconstitutional.[8]  The court therefore affirmed that, in Arizona as in the rest of the country, officers may not search an individual's cell phone incident to arrest.  While the government has a legitimate interest in enforcing laws and preventing crime, this interest must be balanced against the individual's right to privacy.  When a person is arrested, officers must protect that right by obtaining a warrant before searching the person's cell phone.

[1] 121 S.Ct. 2038 (2001).

[2] 132 S.Ct. 947 (2012).

[3] Chimel v. California, 89 S.Ct. 2034, 2040 (1969).

[4] 134 S.Ct. 2473 (2014).

[5] Id. at 2485.

[6] Id. at 2486.


[8] 215 WL 3986142 (Ariz. App. 2015).

About the Author

Adam Page

Mr. Page primarily practices in the areas of personal injury and criminal defense.


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