When Can Cops Seize Cell Phones?

Let’s be honest – cell phones have become a necessity to our everyday lives. Many would be lost without a cell phone as it houses almost endless amounts of our personal information, from phone numbers, to thousands of photos/videos, and even to our more private and personal information like bank data, passwords, etc.

During ongoing investigations into crimes, cops are looking to cell phones with more frequency realizing how likely it is that valuable information and evidence may be found there. When can cops do this? And what protections are afforded the owner of the cell phone? Enter the Fourth Amendment.

The Fourth Amendment guarantees that we are protected from unreasonable, warrantless searches and seizures. The Supreme Court of the United States ruled in 2014 that a warrant is mandated in order to search the contents of the cell phone. There is simply too much valuable and private information contained within cell phones now to permit a warrantless search of it.

That leaves us with the initial question – when can cops seize a cell phone? There are many ways this can be accomplished. The first and easiest way is if the cops get a warrant for the initial seizure of the phone. Without a warrant, an exception to the warrant requirement must come into play. Some that may come up – Consent, Search Incident to Arrest, Exigency Circumstances, or Plain View.

The Minnesota Supreme Court reviewed this very issue in a 2015 case – State v. Holland – and focused on the plain view exception. Under the plain view exception, three criteria must be in place for the police to seize the phone: (1) the police must be lawfully in the position from which they have a view of the phone; (2) the officer must have a lawful right of access to the phone; and (3) the incriminating nature must be immediately apparent. The last point is often the one most in debate. Essentially, it requires that “a person of reasonable caution (would believe that the phone) may be useful as evidence of a crime.” As you probably guessed, this is sufficiently vague and loose for it to be abused by police and even courts trying to support the police. With that being said, it leaves ample room to raise these grave constitutional issues and the defense is armed with the policy behind the Supreme Court of the United States’ decision mandating warrants for the ultimate search.

If evidence gathered during a search of your cell phone comprises critical evidence for the State’s case, it is imperative that you get a team of defense attorneys that knows how to raise these constitutional issues for your case. It is not uncommon for cops to overstep the protections afforded under the Fourth Amendment.