The answer depends on the circumstances. If a police officer asks for your consent to search your phone and you provide consent, then yes, they may search your phone. You should never give police consent to search anything, including your phone, even if you believe nothing incriminating will be found. You don’t want to find out the hard way that your belief was wrong.

In general, without a warrant and without consent, police cannot search your phone. In Riley v. California, 134 S.Ct. 2473 (2014), the United States Supreme Court held that in general, police may not search the digital information on an individual’s cell phone without a warrant. The Court applied the rules set out in past cases that dictate when police may search property found on or near an arrestee. One rule is that police may search the area within immediate control of an arrestee if the search is justified for officer safety or the possible destruction of evidence. The Court determined that digital information on a cell phone cannot be used as a weapon against police and therefore that exception to the warrant requirement does not apply.

The Court left open the possibility that under some circumstances an exception to the warrant requirement for officer safety might apply. The application of this exception would depend on the unique facts of a particular case. Remember that in general, the police cannot search the digital information on a cell phone without a warrant. The Court also refused to create an exception to the warrant requirement based on the possibility that the information on cell phones is vulnerable to destruction through remote wiping and data encryption. The Court reasoned that law enforcement can access technologies that can prevent this type of destruction without running afoul of Fourth Amendment protections. Also, the Court noted that it was not persuaded that remote wiping and data encryption are prevalent methods used by arrestees to destroy evidence upon arrest.

In conclusion, do not provide consent for police to search the contents of your phone. Normally, if you do not consent, they need a warrant. Do not feel pressure to provide consent even if the officer says something about getting a warrant. It is their job to persuade a court that they have probable cause to search your phone for evidence of a crime.

A continuation of this discussion will follow in part 2.

If you were arrested or under investigation for a crime and the police searched your phone, contact The Hardy Law Group, PLLC, to discuss the legality of the search.