Can the Police Search Your Cell Phone?

During an arrest, the United States Constitution affords you certain rights. You have the right to remain silent during the arrest process, as well as have the right to a speedy trial and the right to consult a defense attorney.

You also have the right to be free of unreasonable searches and seizures of your private property — and you may wonder if these rights extend to your cellular device. Washington has specific laws regarding the search of a cell phone.

Do the Police Need a Search Warrant to Access Your Cell Phone?

The Fourth Amendment of the Constitution protects you from unreasonable searches and seizures. Washington police officers can only search your cell phone under certain circumstances, in accordance with these constitutional rights.

If the police officers have a warrant to search your cell phone, they may access your information. If the police officers search your cell phone without a warrant, this is a violation of your Fourth Amendment rights.

Police officers may assume they have the right to search your phone during an arrest, but cannot do so without a specific warrant or under certain extenuating circumstances. If a suspect abandons a cell phone while fleeing a crime scene, for example, the police officers may perform a warrantless search of the device.

Can Police Use a Phone’s Lock Screen as Evidence?

You may also wonder if the police could use data they see on your phone’s lock screen as evidence against you, such as a text message or email. However, a recent decision from the United States District Court in Seattle determined that police officers must have a search warrant prior to using this evidence in the courtroom.

According to the decision, a police officer may take your phone during arrest, but an investigator cannot use lock screen data against you in the courtroom after they place your phone in the search inventory. Taking a screenshot of the lock screen after the fact is a violation of your constitutional rights.

The Stored Communications Act

One federal statute that protects your electronic privacy is the Stored Communications Act, passed in 1986 as part of the Electronic Communications Privacy Act.

Third-party internet service providers (ISPs) generally protect our electronic and wire communications and stored data, as well as transactional records. Under the Stored Communications Act, ISPs have to follow specific rules and limitations regarding the disclosure of customer information and communications.

Government entities must obtain a search warrant before accessing information through an ISP. A third-party violates the Act if he or she engages in any of the following actions.

• Intentionally access an electronic communications facility without prior authorization
• Intentionally exceed a prior authorization to access an electronic communications facility
• Alter, obtain, or prevent authorized access to an electronic communication stored in the facility’s systems while accessing a facility or exceeding an authorization

Consequences for violating the Stored Communications Act may include fines and jail time, up to 5 years for a first offense and up to 10 years for subsequent violations.

What If a Police Officer Searches Your Phone Without a Warrant?

If a police officer believes that evidence exists on your cell phone, he or she will obtain a warrant to search your phone. However, if an officer takes your phone without express authorization, this is a violation of your constitutional rights. In these situations, speak to a criminal defense attorney in Tacoma as soon as possible.

The Constitution affords you certain rights, and it is the responsibility of law enforcement to uphold these rights. If you believe that an officer conducted an unauthorized or illegal search, contact a lawyer to discuss your legal options and next steps forward.