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When Can Police Search My Smartphone?


In this day and age, to say that cell phones are common is an understatement. According to the Pew Research Center, 95 percent of Americans now own a cell phone of some kind. And the number of Americans with smartphones has more than doubled since the Center’s initial survey in 2011 which identified just 35 percent of Americans as smartphone users in comparison with the 77 percent that currently self-identify as having a smartphone. Many people now use their smartphones as GPS systems, for social media, and to take notes. However, smartphones can also contain a host of information that police investigators would like to use against you in the pursuit of criminal charges. Whether during a traffic stop, at the scene of a car accident, or while investigating a crime, authorities regularly ask people to turn over their phones. It is therefore imperative that you understand your rights concerning your smartphone before you turn it over.

Understand Your 4th Amendment Rights.

The 4th Amendment protects you from unreasonable searches and seizures. This turns largely on whether the area or object of the search or seizure is considered to be something that you have a reasonable expectation of privacy in. To a certain extent, your smartphone is also protected under this right. In 2014, the Supreme Court of the United States (SCOTUS) unanimously ruled that police officers only have a legal right to search your smartphone if they have a valid warrant, even during an arrest. This represented a departure from the traditional rule that warrantless searches are allowed in connection with arrests as well as a huge victory for privacy rights.

Should I Allow Authorities to Search My Phone if They Don’t Have a Warrant?

No. Even if you don’t think you have anything incriminating in your smartphone, you can still inadvertently allow police and prosecutors to access evidence that can be used against you in relation to a charge you might never have faced had you not granted access.

Outstanding Questions That Have Not Yet Been Answered.

Deceased people. Earlier this year, this question arose when Largo detectives attempted to unlock the phone of a deceased man at a funeral home by holding the hand of the corpse to the deceased man’s smartphone. As deceased people do not have expectations of privacy, this is a gray area of law.

Tablets and laptops. Though it is generally assumed that the 2014 SCOTUS ruling also encompassed tablets and laptops, the question has not been specifically addressed by either SCOTUS nor the Florida Supreme Court.

Fingerprints and facial recognition software. This question arose in a 2014 Virginia Circuit Court ruling where it was held that a criminal defendant could be compelled by police to give up his fingerprint, but not his passcode. As the question also has not been specifically addressed by SCOTUS nor the Florida Supreme Court, it remains unclear how it will be treated here if raised as an issue.

Contact an Experienced Criminal Defense Attorney Today.

If you are facing criminal charges, it is critical that you reach out for help from an experienced criminal defense attorney as soon as possible. As a former prosecutor with extensive criminal experience on both sides of the legal system, Donald C. Barrett is the Tampa criminal defense attorney you want on your side. Schedule a consultation today.


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