Your Life Is On Your Cell Phone and The Constitution Is On Your Side
If you’re stopped, pulled over, or arrested by the police in Colorado, you may understandably wonder whether police can search your cell phone. After all, you no doubt have your phone on you, as you probably do every waking moment. And on that device is a vast treasure trove of information about you and your life.
Texts, emails, photos, social media accounts, and search histories can provide anyone with access to your phone a broad, if not necessarily accurate, picture of who you are, what you’ve done, and where you’ve been. If one of the things you did or places you went involved potentially criminal activity, your phone may contain evidence that Colorado Springs prosecutors could use to convict you.
Fortunately, the Fourth Amendment to the U.S. Constitution, as interpreted by the U.S. Supreme Court as well as the Supreme Court of Colorado, place limits on how, when, and why Colorado police can search cell phones. If police access the data on your cell phone without first obtaining a warrant or in other limited permissible situations, a good criminal defense attorney can likely get a judge to rule that any evidence found on your phone is inadmissible in the El Paso County courts.
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A Warrant is Generally Needed to Let Police Search Your Cell Phone
The Supreme Court has long held that police have a right to search suspects in custody or do a “pat-down,” without a warrant to ensure safety and prevent the destruction of evidence. This means that they can take possession of everything on your person, from keys to wallets to backpacks to cell phones. But taking possession of an item and searching it for reasons unrelated to preventing physical harm or evidence destruction are two different things.
You do not have to let police search your cell phone. In 2014, the Court confronted the issue of whether this exception to the Fourth Amendment’s prohibition against “unreasonable search and seizure” extended to the information contained on an arrestee’s cell phone. The Supreme Court answered the question unanimously in Riley v. California, holding that the rationale for such warrantless searches did not extend to cell phones.
In the opinion authored by Chief Justice John Roberts, the Court rejected the argument that the safety of officers justified a warrantless search of the phone’s contents because “once an officer has secured a phone and eliminated any potential physical threats…, data on the phone can endanger no one.”
As to the possible destruction of evidence that may be on the phone, Roberts said that such a circumstance was remote, and the police could easily address concerns such as remote wiping by turning off a phone or removing its battery.
“A digital record of nearly every aspect of our lives…”
In the decision, the Court acknowledged the central role our cell phones have come to play in our lives, noting that 90% of Americans had them and that they contain “a digital record of nearly every aspect of [our] lives – from the mundane to the intimate.”
Looking back at the origins of the Fourth Amendment, which was a reaction to British forces indiscriminately rummaging through homes, papers, and other items in search of information, Roberts concluded that “the fact that technology now allows an individual to hold such information in the palm of his hand does not make the information any less worthy of the protection for which the founders fought.”
Even With a Warrant, Police in Colorado Can’t Go On a Phone Fishing Expedition
When police or prosecutors ask a Colorado Springs judge to issue a search warrant, they must set forth the reason they are doing so, why they think a search warrant is necessary, and what information or items they are specifically seeking. For example, if police obtain a search warrant for your home that says that they are looking for assault weapons, they should not be rummaging through small drawers, jewelry boxes, or medicine cabinets.
The Colorado Supreme Court just this year applied similar limits to cell phone warrants, holding that they violate the Fourth Amendment if the warrant or search extends beyond information related to the alleged offense.
In Coke v. People, the Colorado courts held that a warrant which “permitted the officers to search all texts, videos, pictures, contact lists, phone records, and any data that showed ownership or possession” was unconstitutional. “We conclude that such broad authorization violates the particularity demanded by the Fourth Amendment. Because it authorized a general search of Coke’s phone, it was also unreasonable under the Fourth Amendment,” the court ruled.
Consent Makes a Warrant Irrelevant
If you are arrested in Colorado Springs and asked to let the police search your phone, you should respectfully refuse. As with a Colorado Springs officer’s request to search your vehicle, if you give police consent to search the contents of your cell phone, a warrant becomes irrelevant.
By agreeing to let police search your cell phone, you waive any right to challenge the legality and constitutionality of that search. You may also lose your ability to challenge the admissibility of any incriminating evidence found on your phone based on the search.
If the police arrest you and ask for access to the contents of your phone, you should refuse. You should then contact an experienced Colorado Springs criminal defense attorney as soon as you can. Your lawyer can protect your rights and prevent you from making mistakes that could hobble your ability to defend yourself against criminal charges, including putting your life as reflected on your phone into prosecutors' hands.