Posted on: Jul 18, 2014By Michael Cindrich

Know Your Rights: Police May NOT Conduct a Cell Phone Search Without a Warrant if You Are Arrested for a Marijuana Related Drug Charge

The Supreme Court recently issued its opinion on the validity of cell phone searches that occur as a part of a routine arrest. The repercussions effect all arrests, including arrests for: marijuana possession, possession of marijuana for sale, or even driving while under the influence of marijuana. This opinion clarifies and strengthens Fourth Amendment privileges against search as well as privacy protections for those who find themselves on the wrong side of an arrest. Under the Fourth Amendment the police, or any government agent, may not search an individual without a valid warrant. There are, however, a few exceptions to this which are leveraged by arresting officers. Particularly searches “incident to a lawful arrest” as well as the exception for “exigent circumstances,” allowing police officers to circumvent the requirement to obtain a warrant before the search.

Imagine a scenario where an individual is stopped while driving home from work for inadvertently running through a red light. The police initiate a stop, and as the officer approaches, he smells the odor of marijuana emanating from the vehicle. Upon further visual inspection, the officer notices drug paraphernalia or evidence of marijuana possession.  After asking the driver to step out of the vehicle, and performing a series of field sobriety tests the officer places the individual under arrest for marijuana possession and possibly driving under the influence of marijuana. During the arrest, the police officer confiscates various items, including a cell phone without a password lock. Under previous exceptions to Fourth Amendment protections, police officers felt free to rummage through the cell phone contents, possibly uncovering information on other more serious crimes like drug trafficking, gang affiliation, or other unrelated crimes. This poses several potential problems to privacy and Fourth Amendment protections due to the massive amount of data contained in cell phones.

Fourth Amendment Rights Against Search and Seizure

The US Constitution protects against unreasonable search by police by way of the Fourth Amendment:  “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” This requires police, or any government agent, to acquire a warrant before searching through the belongings of any person, whether suspected of a crime or not. Under most circumstances, the police may conduct a search “incident to a lawful arrest” of the personal property of a suspect. This exception is meant to protect the police officers from any dangerous objects a suspect may have or in order to prevent the destruction of evidence that the suspect may be carrying. A second widely used exception falls under the category of “exigent circumstances.” Exigent circumstances arise where police are in active pursuit of a felon or are in an immediate danger preventing them from acquiring a warrant. Most cell phone searches fall under the former, where an individual’s cell phone is searched as a result of an arrest.

Protections Against Search by Police Officers Historically

Traditionally, police officers who have made a lawful arrest have the lawful ability to conduct a search “incident to the arrest” of the personal belongings of the person being arrested. This means that police may pat down a suspect during his arrest as well as search through any items he may have in his pockets. Often times the justification for this is to prevent harm to the officers or prevent the destruction of evidence. There are three landmark cases which provide insight on the protections afforded by the fourth amendment: Chimel v. California, 395 U. S. 752, United States v. Robinson, 414 U. S. 218, and Arizona v. Gant, 556 U. S. 332. In each of these cases, a suspect was arrested and a search was conducted alongside that arrest.

Under the facts of the 1969 Chimel case, police conducted an extensive warrantless search of the suspect’s home claiming the search was done lawfully incident to arrest. The court decided in favor of the defendant and ruled that police could only search the immediate area within reach of the suspect. The reasoning for this was limited to protecting the officers from harm and limiting the potential for destruction of evidence. In the Robinson case, a vehicle was pulled over, and the occupant was arrested for driving on a suspended license. The police then searched the defendant and found him to be in possession of several capsules of heroin, which had been hidden inside an old cigarette package. The court sided with the police here and ruled that the search as a result of the arrest was lawful, and the heroin found in the pocket of the defendant could be used as evidence against him. Finally, in Gant, the police arrested three individuals after they had exited their vehicle and were walking away. The police arrested the group and then conducted a warrantless search of the vehicle. Again, the court sided with the defendants and ruled that the search was unlawful because the contents of the vehicle posed no immediate threat to the police. Each of the cases discussed above focuses on the defendants’ physical belongings: a home, a cigarette package, and a vehicle. In the Supreme Court’s recent opinion, the question regarding cell phone searches has finally been answered.

Police May NOT Search a Cell Phone Without a Warrant

Looking back at the previous example where the driver was pulled over for running the red light. Under the case law in Chimel, Gant, and Robinson, the police would likely make arguments that they have a right to look through a cell phone because the cell phone is in the immediate reach of the suspect or in his pocket at the time of arrest. The Supreme Court says this is not the case. In order to search through the contents of a cell phone during an arrest, the police must obtain a warrant.

Cell phones, especially smartphones like iPhone and Android, contain vast amounts of data about an individual. Prior established cases had not anticipated that approximately 90% of the population would be walking around with devices containing so much personal information. A standard smartphone likely contains a huge amount of information including phone call logs, text messages, pictures, geolocation data, banking information, etc. — all of which could potentially be incriminating under some circumstances.

The Supreme Court looked at two separate cases while forming its opinion on cell phone searches. In the first, United States v. Wurie, the police used information from a cell phone to track down a suspect’s residence, and ultimately found various drugs and drug paraphernalia along with a firearm to charge the defendant with drug and weapons charges. In the second example case, Riley v. California, the suspect’s cell phone contained pictures and text messages linking him to the Bloods street gang as well as an unrelated drive-by shooting. In both instances, the suspects were arrested and searched, and the information police found on their cellphones was enough to charge them with separate, more serious crimes. In each of these circumstances, the Supreme Court decided in favor of the defendants right to privacy of their personal information contained on the cell phone. For a more detailed account take a look at the opinion by the Supreme Court regarding warrantless cell phone searches.

What Should You Do with a Cell Phone if You Are Arrested?

The first thing you need to do if you are arrested for a marijuana, drug, or other criminal offense is to cooperate with the arresting officer. Cooperation, however, does not mean giving up all of your rights. Politely inform the officer that you do not consent to a search of your body, belongings, or cell phone. The officers will very likely pat you down and confiscate your belongings, including your cell phone. Even if the police do take your cell phone they will need to obtain a search warrant before they can go through all of your private information. They may even ask you for the password to unlock your phone and search through it, but again politely let the police know that you are cooperating but do not consent to a search of your cell phone.

The police may very well eventually obtain a warrant to search your phone, at which time you should seek the advice of an experienced San Diego criminal defense attorney who can guide you through the difficult process of defending yourself against accusations of marijuana possession or other more serious criminal offenses.

As a final word of advice: do not attempt to destroy your cell phone or erase the information on it after being stopped by police, as this could result in additional charges for destroying evidence. If your phone does not already have a password and encryption, and you are not currently under arrest or under investigation for a crime, take the time to setup a secure password and encrypt your cell phone information. If you are unsure how to do this take a look at our handy how to-guide on encrypting a cell phone to protect your information.