Do police have a right to search your cell? New technology raises new legal questions

Posted: July 12, 2011 by scaryhouse in Uncategorized


If you are arrested, do the police have the right to look through your cellphone?

After all, they can already look through your purse, your wallet, your pockets– or your car, if that’s where you are when you’re arrested.

Increasingly they’re also looking through your phone, with the idea that your phone can hold evidence of a crime.

But whether they can legally do so–or should be able to legally do so–without a warrant is still a question up for debate.

Proponents say cellphones can hold a lot of evidence, evidence that can be erased, and that it’s important for police to be able to check that. Opponents say it’s a violation of a person’s right to privacy and is prohibited by the Fourth Amendment’s protection against unreasonable searches.

There is no consensus among legal rulings.

California’s supreme court recently ruled such searches OK. Ohio’s courts ruled in the other direction, saying police need a warrant.

In Virginia, at least one case of a warrantless cellphone search has been upheld by courts, and police and commonwealth’s attorneys say it’s not unusual for police to do such searches in Virginia.

“It’s pretty commonplace. It happens all the time,” said Spotsylvania County Commonwealth’s Attorney Bill Neely.

Virginia State Police spokeswoman Corinne Geller said the state police do not do warrantless cellphone searches. Stafford County Sheriff Charles Jett said his deputies do sometimes, if necessary, but more frequently get a warrant, especially to download or search for information.

Neely said cellphone evidence can disappear–someone might wipe the phone’s data, or text messages might expire. That’s one reason why cellphones are not treated the same as computers, he said.

“If you leave a cellphone in somebody’s company, they can erase it in just a few minutes,” Neely said. “It’s been upheld by the appellate courts, and it’s certainly, at this day and time, very useful evidence. You’d be amazed what people put in their cellphones. Very incriminating stuff.”

There are both legal and constitutional issues at the heart of the matter.


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