Can the Police Search My Phone in California?

When the iPhone was introduced in 2007, it quickly changed how we use technology. Today’s smartphones don’t just make calls – they take pictures, record video and audio, keep our calendars, store our e-books, and much more. In short, today’s smartphones contain what the U.S. Supreme Court has called “the privacies of life.”

Because they contain so much private information, no one would let a random stranger look through their phone. But what happens when that stranger is a police officer? Can the police search your phone? 

This article explains when police can search cellphones. It also discusses important exceptions to the main rules that everyone should know. Finally, it explains how a Marin County criminal defense attorney can help if the police have searched your phone. 

The Main Rule: The Police Can’t Search Your Phone Without a Warrant or an Exception

The Fourth Amendment provides protection against “unreasonable searches and seizures.” Generally, this means that police cannot seize (take) items or search them without a warrant or a valid exception to the warrant requirement. 

To get a warrant, the police must convince a judge that there is probable cause to believe that a crime has occurred and that the item they seek could provide evidence of that crime. The warrant must accurately describe the place to be searched and the items to be seized.

However, it is not always possible for officers to get a warrant. As such, the U.S. Supreme Court has adopted several exceptions to the warrant requirement. 

The U.S. Supreme Court applied these principles to smartphones in Riley v. California. In that case, David Riley was arrested. After the arrest, the police searched his pockets. Upon finding Riley’s smartphone, they opened it, looked through his pictures, and found evidence connecting him to several crimes. The majority decided that law enforcement must get a warrant before they can look at a smartphone’s digital contents. Upon making an arrest, police can take, secure, and store the cell phone, just as they would any other items that belong to an arrested person. However, they cannot look at digital information stored on the phone unless they have a warrant or an exception applies. 

Which Warrant Exceptions Can Police Use to Search My Phone? 

There are many exceptions to the warrant requirement. Here’s how some of them might apply to smartphone searches. 

• Consent. Even without a warrant, officers can ask people for consent to search their items. This consent must be voluntarily given. So, if an officer asks for permission by saying that they have a warrant when they really don’t, the consent is likely invalid. 

Also, consent can be limited in scope. So, if a person tells the police that they can look at one folder of pictures but not another, the police must respect that boundary. 

Despite these limits, the best practice is this: If the police ask for your permission to search your smartphone, decline politely and ask them to come back with a warrant. 

• Plain view. The plain view doctrine allows police to seize items when: 1) the police are lawfully present in the area; 2) the police have a lawful right to access the object; and 3) the incriminating nature of the item is immediately apparent. For example, an officer enters a home under a warrant exception, giving them a lawful right of entry. If an officer sees an incriminating photo during an arrest (such as a lock screen photo), the officer can seize the phone. However, the officer cannot conduct a further search of the phone’s digital contents without court permission. 

• Probation and parole searches. The U.S. Supreme Court has long recognized that people on probation or parole have fewer Fourth Amendment rights than those not convicted of crimes. As such, when there is a need to search these people’s homes or belongings, special exceptions usually apply. 

However, states can provide greater protections than federal law demands. California goes further than federal law by requiring that any search of a parolee’s smartphone must be related to parole supervision and must not be arbitrary. Similarly, the California Supreme Court has rejected blanket searches of probationers’ devices, instead using a reasonableness test that considers the reasons for the search condition and whether it is narrow enough to permit lawful activity. There are other California laws that protect parolees and probationers during searches. If you have questions about your rights as a parolee or probationer, contact your Marin County criminal defense lawyer immediately. 

• Airports and Borders. The U.S. Supreme Court has often said that the need to prevent illegal or dangerous items from entering the nation justifies warrantless searches of people entering or reentering the country.  At airports or at border checkpoints, Customs and Border Patrol (CBP) can conduct a “basic” search of a person’s smartphone or laptop. Usually, this is a manual search limited to what’s on the phone at that moment. However, CBP policy states that if there is reasonable suspicion, they can conduct an “advanced” or “forensic” search that goes deeper and can even reveal deleted information. 

At present, the rules around electronics and border searches are rapidly changing. Contact your Marin County defense attorney immediately with any questions or concerns. 

My Phone Was in My Pocket. Can the Police Search It After Arresting Me? 

No. This was the issue in Riley. The government claimed that the search incident to arrest exception applied. The U.S. Supreme Court rejected the arguments, noting that the concerns that justified the creation of that exception – namely, officer safety and evidence preservation – did not apply in the digital context. So, officers may seize your phone if it’s on you during an arrest (which they normally do), but they cannot search it without a warrant. 

Get a Marin County Criminal Defense Attorney to Help You with Illegal or Questionable Phone Searches

This article outlines the rules governing law enforcement cell phone searches. However, officers don’t always follow those rules to the letter. If you believe that your rights were violated during a search, call Brownstein Law Group. We believe that every person is entitled to aggressive, intelligent, and experienced representation. We can help you by: 

• Looking for legal flaws in the warrant,  
• Arguing that the stated exception to the warrant requirement did not apply, 
• Keeping illegally obtained evidence out of court, 
• And much more.

To learn more about what we can do for you, call 415-795-9059 or use our online contact form.