Think back to your high school history class. Can you remember the Fourth Amendment of the Constitution? If it’s not on the tip of your tongue, you’re not alone. Most Americans are woefully unaware of their constitutional rights. But the contents of that amendment are worth remembering – it prohibits searches of your personal property, and that includes your cell phone.
Constitutional amendments are one thing, but do they hold up in real life? The short answer is – yes. Here are a few of the guidelines to apply if law enforcement officials come, asking to see your cell phone.
Refuse the Search
Before giving any information to a police officer, you can refuse the search. Saying, “I do not consent for you to search my home,” and, “I do not want to speak any further until I can see an attorney.” If officials continue to probe you for information, repeat those statements again. And if police officers go ahead and search your property illegally, any evidence they abscond with often cannot be used to incriminate you in a court of law.
Give Consent with Restrictions
Consent in any form allows the police to search your property. But any measure of consent is only done with your permission. If you allow the police to view photos on your phone up to a certain date, they cannot look past that date, for example. With your consent, police won’t need a search warrant at all. But always keep in mind that you are the one in control of the situation, and feel free to take back your previous consent in case you do change your mind.
If Police Come to Your Door, They Still Need a Warrant
With very few exceptions, the police need a warrant in order to step into your home.
Remember, you don’t need to let a police officer inside unless they provide evidence of a search warrant. Law enforcement may start by asking questions. If they possess a search warrant, ask them to show it to you. And if they say they would like to conduct an interview, it is best to decline all further conversation until you can speak to an attorney. Simple, straightforward answers, such as, “I do not want you to search. I will not speak until I have an attorney. I do not want to talk with you,” will suffice.
A major exception to the rule banning police officers from entering your home without a warrant is if law enforcement believes you have incriminating evidence on a data-carrying device (such as a cell phone) that is about to be destroyed. In that case, they can enter without any warrant. And as mentioned before, the only other way police can enter your home is by your consent under your jurisdiction (which can be terminated at any time).
Tell Roommates Not to Give Your Phone Away
When law enforcement does not have a search warrant, they can ask a roommate, guest, spouse, or anyone living in your home to search your cell phone instead. Whoever gives consent to the item of the search in effect allows the item to be confiscated and searched. The only situation in which this method doesn’t work is when one party (a spouse, for example) grants the police permission while the party in control of the item denies it. However, when two or more parties are at odds with consent, police can try to remove the dissenting party and return in order to have other’s right to search.
One way to prevent this from happening is reading your 4th Amendment rights to anyone living with you, and requesting they do not give consent to law enforcement if they arrive at the door.
Jail Searches are Still Limited
Even if you do get arrested, the police are not allowed to search your cell phone even in jail except under very limited circumstances. Police may search any items on the person in question, but Supreme Court law mandates that the police still cannot access anything on your phone without a warrant. The case, battery pack, and other external elements are fine for them to touch, but the law bars police from checking the phone’s contents in-depth without having a warrant.
Confiscation is Allowed in Border Searches
On the border, law enforcement has a lot more leeway. The police can search any cell phone or computer device without a warrant. As you may know, anything passing through an airport, especially an international one, is subject to inspection. However, states like California, Hawaii, Oregon, Washington, Alaska, and Montana, do not allow officials to gather much information from your cell phone unless they have a reasonable suspicion to do so.
If you give your consent, or if the police possess a warrant, or if incriminating evidence on it is about to be destroyed, police have the right to confiscate or search through your phone. But remember, you can always get in touch with your lawyer at any time during these proceedings.
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