In today’s age of smartphones, your cell phone is not only a device you use to make calls. It is also a mini-computer full of all kinds of personal information like text messages, emails, search history, what apps you use, and where you have been. It is typical that you have your cell phone on you at all times, and this is often the case when you are arrested. You may be unsure whether your arrest allows the police to search your cell phone in the same way they can search your other personal belongings. Below, our experienced Salt Lake City criminal defense lawyer at Overson & Bugden explains the search and seizure rules surrounding cell phones and when and whether the police need a warrant to search your phone.
Post-Arrest Cell Phone Search in Utah
When you are arrested, you go through what is known as the booking process. During this process your basic biographical information is collected, you are fingerprinted and photographed, and the items on your person will be inventoried and searched. For example, if you have a purse on you, the police are permitted to conduct a post-arrest search of that purse.
However, the U.S. Supreme Court has ruled that this post-arrest warrantless search exception does not apply in the case of cell phones. In order for a cell phone’s contents to be legally searched, the police must get a warrant from a judge. There are exceptions to this for situations where the police have probable cause to believe that evidence or a crime is contained on the phone and that the evidence will be deleted or destroyed if not obtained immediately. However, typically police are not permitted to search your cell phone unless they get a warrant.
Post-Arrest Cell Phone Seizure in Utah
During the booking process, the police search you and then “seize” all of the items on you at the time of the arrest. They are permitted to seize your cell phone and to hold on to it until they can make a request for a warrant. Even if the warrant is denied, they can continue to hold the phone until you are released, but they cannot search its contents.
In the case that your cell phone is not on you when you get arrested, the police will need to obtain a warrant, or possibly multiple warrants, to search it. For example, imagine if you left your cell phone in your apartment. If the police believe there is evidence of a crime on the phone, they will need to ask a judge to grant a search warrant allowing them to enter your apartment, search for your phone, and seize it when found.
One other way that the police could gain access to your phone is if you give them consent to. It is completely legal for the police to simply ask you if they can look through your cell phone, and if you say yes, they are within their rights to use anything they find as evidence against you. As a law-abiding citizen, you may be tempted to acquiesce to the officers’ requests, thinking you have nothing to hide. However, this is never a good idea, especially with a cell phone that contains a virtual treasure trove of information, some of which you may not even realize is on there. Even if the evidence the police are seeking is not on the phone, it is entirely possible they find something else on there that could get you into trouble.
Search and Seizure Hearings in Utah
One a warrant has been issued the police will be able to hold you cell phone indefinitely, especially if it is found to contain evidence. This is why it is vital that you have an experienced Salt Lake City illegal search and seizure lawyer like those at Overson & Bugden on your side fighting for you to ensure that your rights are respected and your property is not taken from you without legal justification.
If your cell phone has been seized without your consent, your attorney can file what is known as a motion to suppress any evidence that was found on the phone under the “fruit of the poisonous tree” doctrine. This doctrine states that if the original search is tainted, any evidence that resulted from the search is also tainted and cannot be used as evidence against you in a court of law.
There are several ways an experienced Utah criminal defense attorney can craft this motion. First, if the officers are claiming that there are exigent circumstances that allowed them to search your phone without a warrant, your lawyer can argue that no such circumstances existed. There are very specific rules about what entails an exigent circumstance, and police often try to use this excuse where, in reality, a warrant could have easily been obtained without any evidence being destroyed in the meantime.
If a warrant was granted, your lawyer can also attack the warrant in one of two ways. First, since warrants have to be narrowly tailored, they can say that the officers went beyond the scope of the warrant. For example, if the warrant allowed the police to search your text messages, but the evidence they found was contained in your email app, this may be outside the scope and, if so, the evidence found would be invalidated. Your lawyer can also attack the warrant on its face by arguing that the information provided to the court did not meet the level of probable cause necessary for a warrant to be issued.
If Your Cell Phone Has Been Seized as Evidence, Call Our Experienced Utah Search and Seizure Lawyers Today
The U.S. Supreme Court has made it abundantly clear that it frowns upon warrantless searches of cell phones absent clear exigent circumstances. A cell phone is not in the same class as pocket change or a backpack you have on you at the time of your arrest because it contains such a vast amount of personal data. At Overson & Bugden, our experienced Park City criminal defense attorneys have years of experience challenging warrantless searches as well as defective warrants. We can help ensure your privacy rights are respected. For a free consultation, call us today at (801) 758-2287.
