The Constitution of the United States guarantees the legal rights of every person in this nation. The Fourth Amendment to the U.S. Constitution reads, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

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For example, if you are stopped by a police officer while driving in California, and the officer asks to search your cell phone, in most situations, the officer must either obtain your consent or a warrant. Many of us keep a large amount of personal and private information on our cell phones: addresses, phone numbers, personal photos, and even financial information. Police in most cases are forbidden to search your cell phone without your consent – or without a warrant – as a result of the 2014 Supreme Court decision in the case Riley v. California. In that ruling, the majority of the justices determined that your cell phone merits the same legal protections as your residence.

ARE THERE EXCEPTIONS TO THE WARRANT REQUIREMENT FOR CELL PHONES?

In most situations, law enforcement officers in California will need a legal search warrant – or your consent – to search the data on your cell phone. But there are exceptions – “exigent circumstances” – that permit the police to search your cell phone without your consent or a warrant. The exigent circumstance must be genuine, however. The police must know actual facts that lead to the reasonable conclusion that an emergency exists, and they may not fabricate an exigent circumstance as an excuse for a warrantless search of your phone. Police officers may search your phone only if they can provide a clear and urgent reason why they need to.

Those clear and urgent reasons could include keeping evidence of a crime from being destroyed, pursuing a fleeing suspect, or assisting an injured person or someone being threatened with injury. If you are suspected of robbing a bank with an accomplice, for example, the police may search your phone without warrant or consent in their attempt to ascertain the accomplice’s whereabouts.

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And even without a warrant to search, the police may seize your phone if you are placed under arrest, and they may hold the phone until they can obtain a search warrant. Officers must request a warrant from a federal or California state judge. A judge will issue a search warrant for a cell phone only if the judge is persuaded that there is probable cause to believe that a crime has occurred and that the search will yield evidence regarding the crime. A search warrant for a phone must precisely describe both the phone and the evidence that is being sought.

WHAT IS THE EXCLUSIONARY RULE?

If the search includes any devices apart from those detailed in the search warrant or uncovers evidence apart from the evidence described in the search warrant, the search is not valid, and no evidence from the search can be used against you in a court of law. The “exclusionary rule,” based on the Fourth Amendment, excludes any evidence that was obtained illegally. According to the Legal Information Institute (LII) at Cornell University Law School, “The exclusionary rule is a court-created remedy and deterrent, not an independent constitutional right.”

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The Legal Information Institute website explains, “If evidence that falls within the scope of the exclusionary rule led law enforcement to other evidence, which they would not otherwise have located, then the exclusionary rule applies to the related evidence found subsequent to the excluded evidence, subject to a few exceptions. Such subsequent evidence is called the ‘fruit of the poisonous tree.’”

IF THE POLICE WANT TO SEARCH YOUR PHONE, WHAT SHOULD YOU DO?

If you are stopped in traffic by the police, or if the police come to your door, and if an officer asks to search your cell phone, politely but firmly refuse. If you consent to a search of your phone, whatever the police find there can be used against you. A request from a police officer for your consent to search your cell phone is probably a “fishing expedition,” because if the police truly think that your phone has evidence of a crime, they’ll get a warrant.

Politely make it clear that you do not consent to a search, but do not resist the police. Instead, cooperate. Don’t offer any resistance, but politely establish that you do not consent to a search of your phone. In southern California, if a cell phone search is illegal, let an experienced Orange County criminal defense attorney handle the matter on your behalf – later. If you physically resist the police, you’ll certainly face additional charges – like resisting arrest or obstruction of justice.

California defendants who were arrested for a crime prior to June 25, 2014 – the date of the Riley v. California decision – should understand that California courts will continue to admit evidence from cell phone searches conducted without a warrant but related to a lawful arrest prior to that date. The legal concept of ex post facto applies, so warrantless cell phone searches conducted in California before June 25, 2014 are considered legal searches.

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If you are charged with a crime in California after an illegal search of your cell phone, you have the right to dispute any evidence discovered by that search. In Southern California, if that evidence is central to the state’s case against you, an Orange County criminal defense attorney may be able to have the charges against you reduced or in some cases entirely dismissed. If you are the victim of an illegal search of your cell phone, your attorney will probably file a motion to suppress evidence as part of the pretrial process.

A motion to suppress asks a judge to toss out evidence discovered through an illegal, warrantless search of your phone that did not line up with any of the allowable exceptions for cell phone searches. If you are questioned by the police in any situation, for any reason, keep your hands where they can be seen, remain polite, pleasant, and silent, and call an experienced defense lawyer as swiftly as possible if you believe that the police suspect you of a crime.