By John Lee

Can police search my cell phone when they arrest me?

Almost everyone knows the Government monitors cell phones, texts, emails and computer usage to some degree.  We all know that the Government can obtain a search warrant for our computers and can even subpoena search engine records to find our search histories.  Many times we hear of prosecutors that have introduced into evidence the internet searches of a defendant to show that the defendant was researching or investigating how to commit a certain crime.

But since most of us are not doing anything illegal online, we don’t worry about these things too much.  But what about when you get arrested for a infraction or misdemeanor?  Can the officer look into your cell phone?  The US Supreme Court decided this year that an officer cannot search your cell phone subject to a lawful arrest without a warrant.

For hundreds of years it has been established jurisprudence that an officer could search a person that was arrested.  The purpose of this search was to ensure that there were no weapons on the person that could be used to harm the officer.  The officer could search the arrested person, his clothes and near proximity, not only for weapons, but for evidence of the crime.  Evidence found on the arrested person, including pills, cigarette packs, knives, papers, notes or photos, could be used as evidence against the accused.

The U.S. Supreme Court  in Riley v. California ruled that even though a cell phone is approximately the same size as many of the items that previously had been allowed in a search, it was fundamentally different in that it contained so much data.  The Courts discussed at length the just how much personal information could be stored on a cell phone; including thousands of pages of text, hundreds of videos, pictures, videos, bank records and more.  Not only could a cell phone contain tremendous amounts of personal information, it could remotely access even more information through cloud computing.  The Court said that prior to cell phones, people did not carry this much personal information on their persons, and while the police may occasionally find a picture or phone number during a search, they would never find the amount of information contained on a modern cell phone.

Even though the police can not search your cell phone at the time of your arrest when they search you for weapons and other paraphernalia, they can search your phone if they can obtain a search warrant.  Search warrants are very easy for the police to obtain, so you should still be careful what you keep on your cell phone.

Everyone should always make sure their phone is password-protected.  Password protection protects you from common criminals and snooping neighbors, but will not protect you from the Government or real hackers who can easily break through a password.   Having your cell phone password-protected may help in cases were you lost your phone or don’t want prying eyes to see things.  If your cell phone is password protected and a person hacks your password, they are committing a crime and could face prison time if caught.  If your cell phone is not password-protected, then your chances of seeing justice are significantly reduced.

By now, everyone knows merely deleting search history on your electronic device does not permanently delete all data. However, it can’t hurt to delete your browser history, call history and text history from time-to-time.  The purpose of this blog is not to teach you how to be invisible on the internet, but there are basic things you can do to protect yourself.  There are websites that can teach you how to use the internet in an almost anonymous fashion.  There are free proxy websites you can go to that will make it appear to anyone monitoring you on the web that you are in a totally different location than where you actually are, and to some extent mask your identity.  There are search engine sites (not the major ones) that claim to not collect any search history data from their users.  When you use a search engine site that does not collect data, then there is nothing for them to turn over to the police when they issue a warrant for your searches. Remember your phone is always collecting GPS data and connecting to cell phone towers, even when you are not using it.

My point is simply this:  The US Supreme Court ruled in favor of personal privacy when it comes to cell phones searches pursuant to arrest, but don’t be too confident that your secrets are safe: the government can still get the information with a warrant.  If you password protect your electronic devises, use proxy servers, search engines which don’t save histories, take steps to permanently delete files from your computer or electronic device, and remain cognizant of the fact your cell phone’s GPS is normally on, then you may be able to remain somewhat anonymous in the digital age.

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