Can Police Search Your Phone if it is Locked?

Can Police Take and Search My Phone Without a Warrant?

Under the Fourth Amendment, police generally cannot seize or search your phone without a warrant, your consent, or probable cause [1.]. Probable cause means the officer has reason to believe you are involved in a crime.

“If a police officer wants to check your phone without your consent before or after they take it, then they need to show you a search warrant. Even if you’ve been arrested, the police may not search through your phone until they have obtained and presented you with a search warrant.”

Understanding the Fourth Amendment: Protection from Unreasonable Searches and Seizures

The Fourth Amendment of the U.S. Constitution safeguards citizens from unreasonable searches and seizures by the government [2.].

It ensures that:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

Warrants can only be issued when there is probable cause, supported by an oath, and must clearly specify the area to be searched and the items or individuals to be seized.

While the Fourth Amendment offers protection, it does not prevent all searches and seizures—only those deemed unreasonable. The level of protection varies depending on the nature of the violation and the government’s legitimate interests, such as maintaining public safety.

Situations When Police Can Search Without a Warrant

There are certain circumstances in which police can conduct a search without a warrant, including:

• Consent: If someone with authority over the property voluntarily gives consent to the search, though consent can be withdrawn at any time.
• Exigent Circumstances: If there is an immediate threat to life, risk of serious property damage, or concern that waiting for a warrant could endanger public safety or result in evidence being destroyed.
• Search Incident to Arrest: When police make an arrest, they can search the person and their immediate surroundings, such as a vehicle compartment.
• Inventory Search: If a vehicle is impounded, police can search the vehicle as part of their standard inventory procedure.
• Stop and Frisk: Also known as a “Terry stop,” police can search a person’s outer clothing if they suspect criminal activity while the individual is temporarily detained.

What to Do If Police Search Your Phone Without a Warrant in California

If police search your phone without a warrant or consent in California, you can take the following steps:

• File a Motion to Suppress Evidence: Under Penal Code 1538.5, you can request the court to exclude illegally obtained evidence. If granted, the prosecutor cannot use that evidence against you.
• Challenge the Search in Court: You have the right to challenge the legality of the search during court proceedings.
• Sue the Law Enforcement Agency: If the evidence isn’t used in a criminal case, you can file a lawsuit against the law enforcement agency for damages.
• Consult a Criminal Defense Attorney: An experienced attorney can help protect your rights and guide you through the legal process.

The Fourth Amendment protects individuals from unreasonable searches, but it does not shield against all searches and seizures.

Related Article: When Can Police Seize Your Cell Phone

Get a Free Lawsuit Evaluation With Our Lawyers

The Litigation Group at Schmidt & Clark, LLP is an experienced team of trial lawyers that focuses on the representation of plaintiffs in lawsuits. We are handling individual litigation nationwide and are currently accepting new legal challenges in all 50 states.

If you or a loved one was involved with these matters, you should contact our law firm immediately for a free case evaluation. You may be entitled to a settlement by filing a suit and we can help.

References:
1. https://coolidgelawfirmaz.com/can-the-police-search-through-my-phone/
2. https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/what-does-0