The simple answer to this very common questions is “yes.” However, law enforcement must overcome certain constitutional rights before a search of your cell phone would be lawful. However, before the analysis of this deceptively simple question can begin, we must first understand what the Fourth Amendment to the United States Constitution permits the police to do and what it protects.
The Fourth Amendment prohibits law enforcement from seizing a person’s cell phone without a search warrant first being granted after probable cause is demonstrated. It provides:
“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 or things to be seized.”
Thus, the police must demonstrate to a judge that the cell phone is an essential piece of evidence. However, if law enforcement has not secured a warrant, but have probable cause to believe that a cell phone contains evidence relating to a crime, then the police may seize the cell phone for the time period necessary to secure a warrant. This principle was established in United States v. Place, where the United States Supreme Court held that:
“Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Court has interpreted the [Fourth] Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.”
To reiterate: the seizure of a cell phone is different than a search of a cell phone. Seizure of the cell phone only impacts the owner’s possession, while a search affects the owner’s interests in maintaining their privacy. Thus, there are different implications for each.
While the Ohio Supreme Court has not yet stated that a cell phone is a closed container for search and seizure purposes, the United State Supreme Court has approved on numerous occasions the warrantless seizure of a cell phone. However, law enforcement may not search the cell phone until they are issued a warrant. Pursuant to Ohio v. Smith:
“Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take the preventive steps to ensure that the data found on the phone are neither lost nor erased. But because a person has a high expectation of privacy in a cell phone’s contents, police must then obtain a warrant before intruding into the phone’s contents.”
Therefore, to more completely answer the question posed in the title, law enforcement is permitted to search your cell phone after securing a warrant. The police are not allowed to do so prior to this. However, the police are permitted to seize your cell phone prior to the issuance of a warrant to preserve it as evidence and then seek a warrant to search the phone.
Due to the complex nature of search and seizure laws, any time your cell phone is seized without a warrant in relation to the investigation of a crime, you should strongly consider hiring a criminal defense attorney. Your criminal defense attorney will review the evidence and the warrant and consider filing a motion to suppress the information obtained through the search of your cell phone based on the evidence being obtaining in violation of your constitutional rights. Specifically, your attorney can argue that taking your cell phone was an unconstitutional seizure of your property and challenge the affidavit in support of the search warrant. After filing these motions, the court will hold a hearing to determine whether law enforcement had the authority to seize your cell phone and conduct a search.
Columbus and Delaware, Ohio Criminal Defense Attorney
If you have been charged with a criminal offense in Columbus or Delaware, Ohio, contact Johnson Legal, LLC and speak with an experienced criminal defense attorney. Attorney David Johnson of Johnson Legal, LLC will discuss your case and assist you in fighting the charges. Call (614) 987-0192 or send an email to schedule a consultation regarding your criminal offense case.
Johnson Legal, LLC serves the following cities in the central Ohio area for Criminal Defense:
Westerville, Worthington, Columbus, Polaris, Reynoldsburg, Grandview Heights, Shawnee Hills, Bexley, Pickerington, Gahanna, Sunbury, Powell, Upper Arlington, New Albany, Dublin, Hilliard, Lewis Center, Galena, Clintonville, Huber Ridge, Blacklick, Grove City, Delaware, Marysville, Groveport, Newark, Canal Winchester, Obetz, Marion, Mt. Gilead, Pataskala, Granville, Whitehall, Franklin County, Morrow County, Licking County, Union County and Delaware County