BEEN ARRESTED: CAN THE POLICE SEARCH MY PHONE?

Being arrested or approached by police can be intimidating. You may not know your rights, or you may feel pressured into consenting to police requests you’re not sure about. The Constitution protects us from “unreasonable search and seizures”, but what does that mean when you’re arrested? The police can search your pockets, and maybe even other areas and spaces within your reach. What if they ask to see your cell phone?

Phones have evolved from landline devices used exclusively for phone calls to portable computers, full of our most private data. Some of that data—which can include medical records, financial information, passwords, conversations, and photographs—is not even physically present on the phone, but stored offsite, in the “cloud.” Is it reasonable for a police officer to have access to that amount and type of information, in the absence of a warrant?

As the role and function of phones in our lives has changed, so have courts changed their interpretation of the amount of privacy a reasonable person expects regarding their phones. Only within the last decade has the Supreme Court definitively addressed this issue, holding that police may not search your phone without a warrant or permission. Read on to learn more about your rights when it comes to police cell phone searches in Texas.

CAN THE POLICE SEARCH MY PHONE?

In general, police may not search your phone without a warrant or your permission. The Supreme Court has held that police officers need warrants to search the phones of people they have arrested. However, exceptions may apply, depending on your circumstances.

The Fourth Amendment to the U.S. Constitution protects against “unreasonable searches and seizures”, as does Article 1 of the Texas Constitution. However, it was not until 2014 that the U.S. Supreme Court applied this protection to cell phones, holding that search and seizure of a cell phone’s digital contents, without a warrant, is unconstitutional.

When you are arrested, police officers may search your clothing, pockets, and surrounding areas and containers within your immediate control. According to the Supreme Court, a cell phone is different from other items in your possession. Unlike a weapon found in a person’s pocket, a cell phone typically presents no physical threat. And unlike other items found in pockets, such as keys or cigarettes, a cell phone may contain the most private of data, including financial information, medical records, and intimate conversations and photographs.

As with other prohibited searches and seizures, exceptions apply for exigent circumstances. Where physical danger is present, such as a razor blade contained inside the phone case, a police officer may open or take the phone apart to minimize the threat of harm. Phones may also be searched without a warrant in the case of emergencies, such as when a child is missing or where a bomb or other imminent threat exists. And, a police officer who believes that evidence may be immediately destroyed or wiped may search the phone without a warrant or otherwise act to preserve evidence, such as by turning the phone off.

Police officers may also search your phone if you give permission. It is critical to know your rights in the event you are arrested, and to contact a Texas defense attorney immediately if you believe your rights have been violated.

BEEN ARRESTED—WHAT HAPPENS NOW?

If you’ve been arrested for any criminal charge, and particularly if you’re facing a felony charge, it is critical to speak with an experienced criminal lawyer immediately. Do not speak to the police without an attorney present.

If you are arrested or the police show up to your house, ask to see a warrant before granting entry to your home or consenting to a search. Without a warrant or probable cause, a police officer needs your permission to search your phone. You do not have to consent to a search of your phone, and you do not have to speak to the police – anything you say may be used against you.

If your phone or other property was seized for safekeeping during your arrest, it will typically be returned when you are released from custody. If your phone or property was seized as evidence, it will be held until your case is resolved.

With any criminal case, the potential consequences and available defense vary greatly with the charges you are facing and the circumstances of your case. Consultation with an experienced criminal defense lawyer in Texas is critical to obtaining the most favorable outcome possible.

WHEN THE POLICE OVERSTEP, WHAT CAN I DO?

If the police violate your rights by illegally searching your phone or other property, the evidence obtained from the illegal search will not be admissible against you in court. Without this evidence, the prosecution may be less able to prove the charges against you, potentially leading to a better plea bargaining position or a dismissal of your charges altogether.

If you’ve been arrested in Texas, contact the experienced criminal defense attorneys at the Law Office of Andrew Williams today. Our firm has a proven track record of successfully defending the constitutional rights of Texans. We will examine the circumstances of your case and arrest to determine whether your rights have been violated. If the evidence against you was collected improperly, it may be possible to have it suppressed, and the charges against you reduced or dismissed entirely.

Even convictions on seemingly minor charges can result in significant jail time and become part of your criminal record, affecting your reputation and ability to find employment. Ensuring that the court only considers evidence that was properly and lawfully collected is an essential part of any defense strategy. The quality of your defense counsel can be the difference between a dismissal or reduction of your charges and years in prison.

BEEN ARRESTED? CONTACT A TEXAS CRIMINAL DEFENSE LAWYER TODAY

If you’ve been arrested in Texas, contact the Law Office of Andrew Williams today. Our knowledgeable criminal defense attorneys have over 20 years of experience defending the rights of Texans, and we will work tirelessly to examine the circumstances of your case and obtain the best possible outcome. Our phones are answered 24 hours a day, every day.

Call us at 281-358-9111 today to schedule your free consultation.

Author: Andrew Williams

I am a criminal defense lawyer with over 30 years experience defending people accused of wrongdoing. I am board certified by the Texas Board of Legal Specialization. Only ten percent of attorneys in Texas are board certified in their respective field. I practice criminal law exclusively in both state and federal court including appeals of criminal cases.