Cell phones, particularly smart phones, have become an essential component to our everyday lives. Thus, it is no surprise why Texas courts have upheld the notion that cell phones are subject to privacy laws under the 4th Amendment. So what happens if you’re arrested and an officer wants to look through your phone? Here’s what you need to know.

Can police search my phone?

The Fourth Amendment to the United States Constitution and Article 1, Section 9 of the Texas Constitution, restricts law enforcement’s ability to search all of your possession incident to an arrest. Though police may search the outside of your clothing and areas within your reach, the Texas Court of Criminal Appeals has held that they may not search your cell phone.

In State v. Granville, 423 S.W.3d 399 (Tex. Crim. App. 2014), the Court ruled that a cell phone search by police violated the defendant’s Fourth Amendment rights and was therefore unlawful. In this case, Anthony Granville was arrested for causing a disturbance on a bus. While in jail, the officer learned that there was a photo on Mr. Granville’s cell phone that could be evidence in an unrelated criminal offense. The police took the phone and searched its contents without a warrant.

The State argued that the Mr. Granville did not have a reasonable expectation of privacy in the contents of his phone because it was in the jail’s possession. The Court of Criminal Appeals disagreed, concluding that you do have a reasonable expectation of privacy in the contents of your phone that is protected by both the United States and Texas Constitutions. The Court reasoned that a cell phone contains personal information that you don’t want shared with the world. Today, people keep medical information, credit card information, and private communications in the form of emails and text messages.

When can police search my phone?

There are only three ways by which a police officer can legally search your cell phone.

Search Warrant

In order to search your phone, police must obtain a valid search warrant signed by a judge. The search warrant must outline specific reasons that the police want to search your cell phone. This is known as probable cause. Police cannot search your cell phone simply as a fishing expedition for criminal activity. Rather, they must have probable cause to get into your cell phone and be able to articulate the information in which they are attempting to obtain.

Exigent Circumstances

Police do not need to obtain a warrant to search your cell phone if exigent circumstances exist. This means that in order to conduct a warrantless search of your phone, there must be an immediate risk that the evidence could be destroyed or someone is in imminent danger of injury or death. Additionally, if you are in your vehicle and officers have probable cause to search your phone, they may do so without a warrant.

Consent

Perhaps the easiest way for the police to get into your cell phone is if you consent to a search. Consent does not require that the officer have a warrant or probable cause to look through the contents of your phone. It is important to remember that if a police officer asks to search your phone, you are NOT required to comply with this request.

What happens if police illegally search my phone?

Situations arise in which officers overstep. If the police violate your rights by illegally searching your phone, the evidence obtained from the illegal search will not be admissible against you in court. Your attorney will file what is known as a Motion to Suppress, and the court will determine whether law enforcement obtained evidence through legal means. If the judge grants the motion, the prosecution will not be able to use the suppressed evidence and may have a more difficult time proving the charges against you.

If your cell phone has been searched by the police, an experienced criminal defense attorney can examine the circumstances of your case to achieve the best possible outcome. Contact me today to set up a time to speak.

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