Can the Police Take My Cell Phone?

Both federal and California laws grant all citizens rights, but there are instances when police can take your cell phone. The Fourth Amendment to the United States Constitution prohibits the government from carrying out unreasonable searches or seizures. This amendment applies to all levels of law enforcement, from the FBI to your local police or sheriff. So, the police cannot indiscriminately take your cell phone. Instead, they need to demonstrate a good reason for seizing or reviewing your phone.

Taking Your Cell Phone with a Warrant

One of the ways that police can take your cell phone is if they have a valid warrant. A warrant is a legal document that authorizes law enforcement to carry out a search. If the police have a warrant signed by a judge that specifically allows the cops to take your cell phone, they will be able to seize the device.

However, note that police must provide a judge probable cause to justify a warrant before the judge signs off on a seizure. In practice, law enforcement must show the judge a reason for taking your cell phone.

To clear the minimum bar of probable cause, the police would need to explain why they believe you are involved in criminal activity. For example, the cops could say they are investigating you for selling drugs, and they think that your phone would contain records that may be used as evidence against you. They cannot show up in court and simply say, “judge, we think so and so is selling drugs, and we need their phone.”

But the evidence needed for probable cause is much less than what would hold up in a criminal trial. Police do not need to prove that you are selling drugs in order to receive a warrant authorizing the seizure of your phone.

Seizing Your Phone During an Arrest

If you are arrested, the police are supposed to inventory your personal belongings so they can return them to you when you are released. Typically, this will include your cell phone. While the police can take your phone when they arrest you, usually, they will need a warrant to search your phone.

If your accused crime has nothing to do with your phone records, police may not be allowed to look through your phone, despite them holding on to it while you are being processed. For example, if an officer sees you punch someone else outside a restaurant and arrests you for battery, it is unlikely they have any justification to search your phone.

Contesting a Warrantless Search of Your Cell Phone

When detectives are building a case against you, they may want to review your phone for evidence of any crimes. However, your lawyer should vigorously argue against any invasion of your privacy. Additionally, your defense team could challenge any evidence found on your phone if the police improperly searched through it.

Because a warrant requires probable cause, your attorney can contest the warrant on the grounds that probable cause for a search did not exist. If you are arrested for throwing a punch, the police generally lack justification for searching your texts for evidence of you dealing drugs. If you are charged with dealing drugs based on that search, your lawyer can try and have all that evidence thrown out and not be used against you at trial.

After an arrest in Orange, California, you will want an experienced criminal defense team to ensure the police do not wrongfully take your cell phone. Schedule a fee-free initial consultation with Chambers Law Firm by calling 714-760-4088 or emailing dchambers@clfca.com. Our skilled team can present you with options for fighting against unconstitutional searches or seizures.