Can Police Search a Seized Cell Phone Without a Warrant?

By Kelly Cheung on May 23, 2013 | Last updated on March 21, 2019

Seized cell phones are safe from a warrantless search by police, the First Circuit recently held. The court ruled that a police cell phone search for data is not constitutional when a person is arrested unless officers get a warrant first.

For Brima Wurie, his cell phone was the one important item that was searched by police officers the evening he was arrested for possessing crack cocaine. Because police looked through his seized cell phone without a warrant, they knew to search Wurie's house, where they found 215 grams of cocaine -- a huge difference from the 3.5 grams found in his possession.

The Fourth Amendment, which Wurie claims was violated in his case, protects people's right to feel secure in their persons, homes, papers, and effects, against unreasonable search and seizures. The First Circuit had to decide if the search-incident-to-arrest exception to a warrantless search includes a police search of an arrestee's seized cell phone.

The court considered various case precedents that involved items like clothing, footlockers, cigarette packages, and cell phones. It ultimately focused on both the nature and scope of the search conducted on the confiscated cell phone.

According to the court, what is distinguishable about a seized cell phone is that it does not hold any evidence that can be destroyed before police get a warrant. An arrestee is away from it at that point. The seized phone itself also does not pose any immediate safety threat to the arresting officers to justify a warrantless search of it either.

The government attempted to create an argument that the phone data could get overwritten remotely. But the court stated that there were simple methods for police to address that concern. For example, police can simply turn the phone off, take the battery out, or copy the data before it gets wiped clean.

In Wurie's case, police could have just waited to get a warrant to search Wurie's seized cell phone, the court held. There was no need to go through the confiscated cell phone before obtaining a warrant. With the suspect under arrest, the evidence in this case would have still been there safely at his house.

As technology advances, our arrest and warrant rules may need to be modified as technology changes our lives. There's a huge privacy concern when it comes to cell phones, and this court recognized that.

The privacy concerns far outweigh the need for police to search a seized cell phone without a warrant. Cell phones are more like our papers and effects protected under the Fourth Amendment. They carry a lot of personal information that most of us wouldn't even want our family members looking at, let alone a police officer. Hence, the utility of a password protection feature that would have prevented police from snooping so soon in Wurie's case.

Police search of seized cell phones is an important issue that affects most people. The Florida Supreme Court found that warrantless cell phone searches are unconstitutional just a few weeks ago. However, four other federal circuit courts have ruled in favor of searching a person's cell phone after arrest, as the Associated Press reported. It will be interesting to see if and how the U.S. Supreme Court will weigh in on this very private issue.

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