Criminal defense gets a bit tougher in states where warrantless cell phone searches spread

Civil rights and criminal defense efforts are being challenged in states where warrantless cell phone searches are allowed. Over the last few years, warrantless cell phone searches have expanded in a number of states as cell phones have been recognized as a treasure trove of personal data.

In California, police are allowed to search an individual’s cell phone when under arrest without warrant. The California Supreme Court ruled in January that the warrantless search was legal. Civil rights advocates in the state are fighting against the legal development by trying to pass a bill that would require police to obtain a warrant before searching an arrested individual’s cell phone.

In Oregon, an officer 40 minutes after arresting an individual analyzed the suspect’s cell phone to look for incriminating evidence without a warrant. Law enforcement officials claimed the cell phone search was “incident to arrest” which is an exception to the warrant requirement. The incident to arrest exception is allowed in order to allow police officers to gather evidence before it is destroyed. An attorney challenging the officer’s actions argues the arrestee was not in a position to destroy the evidence under the incident to arrest exception because the arrestee was in police custody when the cell phone search was conducted.

Two other states have upheld warrantless cell phone searches: Florida and Georgia. Other states have banned the warrantless practice. Ohio has barred police in that state from using the tactic. Police in Michigan can only obtain information from cell phones through the use of data extraction devices and with a warrant.

According to the American Civil Liberties Union, the use of an access passcode can be used to guard the information on a cell phone. Police can ask a person to unlock their phone, but police cannot compel a person to unlock their phone without the involvement of a judge.

Source: CNN.com, “Warrantless cell phone searches spread to more states,” Amy Gahran, 5/31/11

Max Keller has won countless jury trial cases involving misdemeanors and felonies, sex crimes, and DWI’s. He is a member of the Minnesota Society for Criminal Justice, which only allows the top 50 criminal defense attorneys in the state as members. Max is a frequent speaker at CLE’s and is often asked for advice by other defense attorneys across Minnesota.

Years of Experience: Approx. 20 years
Minnesota Registration Status: Active
Bar & Court Admissions: State of Minnesota Minnesota State Court Minnesota Federal Court 8th Circuit Federal Court of Appeals State of Maryland

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