Possibly, but you can take certain steps to protect yourself and prevent the police from being able to search your phone. (1) Do not consent. Do not voluntarily give them your passcode and give them permission to search. Make them get a warrant. (2) Use a strong password instead of biometrics like FacceID or TouchID. Your right to remain silent protects you from being forced to give the police your password, but it doesn’t protect you from the police using your face or fingerprint to open your phone.
You’ve probably heard that you have certain rights when you’re arrested, including the right to remain silent and the right to an attorney. However, you also have the right to retain your privacy.
An arrest is not an automatic pass for law enforcement to search your phone or invade your privacy. Texas law generally protects you from this invasion of privacy, but there are exceptions. An experienced attorney can explain your legal rights. Call the Law Office of Mike Howard to learn more.
How Phone Searches Can Affect Your Criminal Case
Cell phones are an integral part of most people’s lives today. They may contain valuable information about who you’ve spoken to and what you’ve said. Electronic data might also record where you’ve been and when you’ve interacted with the phone.
In some situations, phones may contain evidence that someone has committed a crime. It might contain communications with an alleged co-conspirator. It might refute an alibi claim that you were somewhere else when the crime was committed.
Many people are not aware of their rights when it comes to their cell phones. Law enforcement might even lie to them about this pivotal information. They might use the face scanner on the phone to open it and start reading the contents without lawful authority to do so.
Understanding your rights is the first step toward challenging the police’s trampling on them. An experienced criminal defense attorney can challenge evidence that was illegally obtained from a searched phone.
Texas Laws on Phone Searches
Phones are heavily protected under state and federal privacy laws, including:
Fourth Amendment
The Fourth Amendment to the United States Constitution protects people from unreasonable searches and seizures. Law enforcement must have evidence amounting to probable cause before they can start prying into your private business. This usually involves going through the proper channels to secure a search warrant before looking through the phone.
The federal government has recognized that phones are not the same as other types of personal property, like backpacks or glove compartments. Searching these electronic devices is much more invasive than searching mere physical property.
In one case, the United States Supreme Court held that police generally cannot legally search the contents of a cell phone without a warrant, even after an arrest. The Court stated that phones contain the “privacies of life” and searching them without judicial oversight would trample on people’s privacy rights. This ruling establishes the foundation for how phone searches are handled during traffic stops and arrests.
More and more cases are being decided in favor of people’s right to privacy when it comes to their phones. These cases make it clear that the police don’t get to allege probable cause exists just because you had a phone on you when they think you committed the crime or that the phone could contain evidence. They need evidence that shows a solid link between the crime and the phone.
Texas Constitution
Article I, Section 9 of the Texas Constitution is the state version of the federal Fourth Amendment. It highlights that residents of the State of Texas have strong privacy rights that law enforcement must respect.
Texas Code of Criminal Procedure
Article 18.0215 of the Texas Code of Criminal Procedure goes even further to protect the rights of Texans and explicitly states that, “A peace officer may not search a person’s cellular telephone or other wireless communication device, pursuant to a lawful arrest of the person, without obtaining a warrant.” This helps provide additional rights to arrested Texans and recognizes that digital data deserves greater protection than provided by the Constitution.
Warrant Requirement
Under Texas law, a warrant must generally be acquired before law enforcement can search a phone. Obtaining a warrant usually requires that a law enforcement officer complete an application and present it to a judge with jurisdiction. The application must contain the following information:
- The name, department, agency, and address of the peace officer applying for the warrant
- Specific information to identify the phone
- The likely location of the cell phone or device
- The name of the owner or person who possesses the phone
- The judicial district where the law enforcement agency is or where the phone is located
- The facts and circumstances that provide probable cause that criminal activity has been committed, and how searching the phone is likely to produce evidence in a criminal investigation
Even if law enforcement obtains a warrant, the warrant should limit the scope of the search. For example, if the warrant is for text messages, police generally don’t have the right to search photo files, emails, or apps.
Exceptions to the Warrant Requirement
Although law enforcement must generally have a warrant before a police officer can search the phone, some exceptions can apply, such as:
Consent
Law enforcement could ask for your permission to search your phone. If you consent to the search, law enforcement might not need to obtain a warrant before conducting it. In your attempt to prove yourself innocent of what law enforcement is accusing you of, you could inadvertently be providing them with evidence that they will use against you.
Consent doesn’t have to be written or even verbal. Handing your phone to the police or unlocking it could be construed as permission.
Exigent Circumstances
Obtaining a warrant may not be necessary if “there exists an immediate life-threatening situation,” which means “a hostage, barricade, or other emergency in which a person unlawfully and directly threatens another with death or exposes another to a substantial risk of serious bodily injury.” The law enforcement officer must reasonably believe that this situation exists for this exception to apply.
Stolen Phone
The requirement to obtain a warrant can be bypassed if the phone or electronic device is reported stolen by the owner or possessor.
Fugitives
Another exception is if the law enforcement officer believes that the phone is in possession of a fugitive from justice for whom an arrest warrant has been issued for committing a felony offense.
These narrow exceptions often have to do with time and how long it would take to obtain a warrant. Even if one of these exceptions applies, a peace officer must apply for a warrant as soon as practicable after the search is conducted. If the judge finds that the applicable situation did not occur and does not issue the warrant, any evidence obtained through the search would not be admissible in a criminal case.
Seizure of Cell Phones
It is important that people understand the difference between searches and seizures. A search is looking through the contents of something. The laws discussed above largely deal with the search of phones.
Other rules relate to the seizure of cell phones, which is the physical taking or withholding of the item. Police may be able to temporarily seize a phone while seeking a warrant. They could also hold it, such as inventorying it upon a lawful arrest or search.
However, there are also limits on how long police can seize your cell phone and keep it.
What Should I Do If Police Ask to Search My Phone?
If law enforcement is asking to search your phone, take these steps to protect your legal rights:
- Understand your rights: Realize that you don’t have to allow the police to search your phone. You don’t have to unlock your phone, type in the passcode, or otherwise give up your privacy rights as it relates to your cell phone.
- Don’t consent to a search: Decline law enforcement’s request for a search. Clearly state that you do not consent to avoid any ambiguity.
- Be polite: Be firm in your declining of consent to search the phone, but don’t argue with the police or act in a belligerent manner.
- Invoke your right to remain silent: Other than identifying yourself, if asked, don’t volunteer any additional information to police. Just as you are not required to provide your phone to the police, you are not required to talk to them. Don’t try to explain yourself either. You are simply protecting your own rights.
- Ask to speak to an attorney: Clearly request to speak to a lawyer as soon as possible.
How Can a Criminal Defense Lawyer Help Me?
Cases involving potential constitutional violations can be complicated. You need an experienced attorney who can:
- Explain your legal rights
- Advocate for you
- Represent you during questioning and legal proceedings
- Challenge unreasonable delays regarding the seizure of your phone
- Identify weaknesses in law enforcement’s case
- Argue for the release of your phone so that you can use it for work or family needs
- File motions to suppress evidence that was illegally obtained
Our criminal defense lawyers are here to guide you through the legal process every step of the way.
Contact an Experienced Criminal Defense Attorney to Learn More About Your Phone and Privacy Rights
If police illegally searched your phone during an arrest, you may have legal grounds to challenge the search. An experienced criminal defense lawyer from the Law Office of Mike Howard can review your situation during a confidential consultation. Contact us today to get started with yours.
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