In most cases, police need a valid search warrant to search the data on your cell phone in California.1 But there are some exceptions to the rule that police need a warrant to search your mobile phone.
First, the police may search the data on your phone if you consent to such a search.2
Second, the police may be able to search your cell phone if they can show an immediate need to do so in order to
- prevent the imminent destruction of evidence,
- pursue a fleeing suspect, or
- assist someone who is seriously injured or threatened with imminent injury.3
Third, even though the police may not search the data on your phone without a warrant, they may seize your phone if you are under arrest--and hold onto it until they can get a warrant to search it.4
And, finally, if police in California searched your cell phone without a warrant before June 25, 2014, while you were under lawful arrest, prosecutors probably can use that evidence against you.5
This is because—prior to that date—the law in California was such that warrantless cell phone searches under these circumstances were legal.6
Suppression of evidence from an illegal mobile phone search
If law enforcement officials search your mobile phone without a warrant or another justification, then they may not use any evidence uncovered by that search against you in your criminal jury trial. (This is what is known as the “exclusionary rule,” which is an important California evidence rule.)7
This rule grows out of the Fourth Amendment to the U.S. Constitution —which provides that you have the right to be free from unreasonable “searches and seizures” by law enforcement.8
The United States Supreme Court has recently stated that this right is especially important when it comes to cell phones—which, in the era of “smartphones,” can literally be “a digital record of nearly every aspect of [people’s] lives.”9
And it appears likely that the Supreme Court’s statements on the right of privacy in cell phone data will also apply to limit police searches of computers and hard drives.
Here are some examples of situations where police may lawfully search your cell phone under California’s search and seizure laws:
- After arresting you under a valid arrest warrant on charges of selling controlled substances, the police seize (but don’t search) your cell phone. They then go to a judge and obtain a warrant to search the data on your phone for evidence that your drug trafficking was done in association with a criminal street gang.
- Police arrest you in connection with a bank robbery. You are suspected of having carried out the robbery with an accomplice, who has fled with the money. The police search the text messages folder on your phone to see if you have received any messages from the accomplice that will reveal his whereabouts.
In order to help you better understand when police can legally search your cell phone in California, our California criminal defense attorneys will address the following:
- 1. The Warrant Requirement for Police Searches of Cell Phones
- 2. Exceptions to the Warrant Requirement for Cell Phones
- 3. What Are My Rights if Police Search My Phone Illegally?
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
1. The Warrant Requirement for Police Searches of Cell Phones
In the vast majority of cases, police need a valid search warrant to search the data on your cell phone.10
Police must apply to a California or federal judge for a search warrant.11 Judges will issue search warrants for cell phone data if they determine that there is “probable cause” to believe a California felony has occurred and the search will yield evidence about it.12
A valid search warrant for a cell phone must describe—in specific terms—both
- the cell phone or other mobile device to be searched, and
- the evidence that is being searched for.13
And if the search either
- includes cell phones or mobile devices other than those described in the warrant, or
- yields evidence other than that described in the warrant,
then it is considered invalid. The evidence from that search cannot be used against the defendant.14
Example: Luz, a detective with a police gang unit, applies to a judge for both a warrant to arrest a man named Marcus on gang charges, and a separate search warrant to seize and search Marcus’s cell phone.
The judge grants the search warrant, which states that the search will be for evidence of Marcus’s gang activities.
When Luz and her colleagues arrest Marcus and seize his phone, they do not find any evidence of gang activities on it. But they do find sexual text messages that Marcus exchanged with a 13-year-old girl.
But the text messages may not be used to build a case against Marcus for Penal Code 288.2 sending harmful material to a minor--because they are not the kind of evidence described in the search warrant.
According to Pasadena criminal defense attorney Neil Shouse15:
“The requirement that police obtain a valid warrant before searching the data on a cell phone—in most cases, anyway—was set forth in a rare unanimous decision of the United States Supreme Court. In Riley v. California, the Justices of the country’s highest court agreed that people have a very serious privacy interest in their mobile phones.16 For many people, the data on these cell phones can expose virtually every important detail about their lives—and quite a few unimportant details too!”
2. Exceptions to the Warrant Requirement for Cell Phones
As important as our right to privacy of our cell phones is—there are still situations where police can search or seize your phone without a warrant.
2.1. Consent to a cell phone search
Police are allowed to search the data on your cell phone without a warrant if you consent to them doing so. (This “consent exception” to the warrant requirement applies to all law enforcement searches, including police searches of homes and police searches of cars.)17
But your consent to a warrantless search of your phone is only valid if you give it freely and voluntarily.18
This means that your consent will not authorize a warrantless cell phone data search if, for example:
- you consent as a result of police threatening you with physical force (a form of police misconduct that happens all too frequently),19 or
- police tell you they have a warrant to search your phone—and that later turns out to be false.20
Example: Bernice is arrested for solicitation for prostitution when an undercover officer poses as a “john.” Several of the officer’s colleagues arrive with their guns drawn to arrest her.
While conducting a “pat-down” search of Bernice, one officer finds her cell phone in her pocket and orders her to hand it over.
Seeing that it is password-protected, he yells at her to tell him the password immediately, using obscenities and waving his gun in her face. Terrified, Bernice gives him the password.
Any criminal evidence found on Bernice’s phone probably cannot be used against her. The officer clearly intimidated her into providing her password (and, by extension, permission to search her phone).
Also, even if you initially give your consent to a police search of your cell phone without a warrant, you may change your mind and withdraw that consent at any time.21
If the police continue to search your phone’s data anyway, then any evidence they find must be suppressed.22
Example: Luke, a college student, is smoking marijuana at a college party that is broken up by police. An officer takes him into a hallway and asks for permission to search his cell phone.
Not sure what to do, Luke says yes. But as the officer is scrolling through his text messages, Luke remembers that there are nude pictures of his girlfriend on the phone.
He asks the officer to please stop the search and give him back his phone—but the officer continues to look through the phone.
Eventually the officer finds a text message regarding a large stash of marijuana in Luke’s apartment. He uses this message to obtain a search warrant for Luke’s apartment and finds the marijuana.
Luke is charged with 11351 HS drug possession for sale. But Luke should be able to get the evidence against him suppressed.
This is because any evidence found after Luke withdrew his consent to the search is invalid—including the text message that led to the search warrant for his apartment.
2.2. “Exigent circumstances”
Police may also search your cell phone without a warrant when there is a true emergency justifying such a search.23
The emergency must be genuine, though. The police must know of specific facts that reasonably lead to the conclusion that an emergency exists—and may not “make up” an emergency as a pretext for a warrantless search of your phone.24
Some examples of emergencies that might justify a warrantless search of your cell phone or mobile device are:
- A reasonable belief that you or a criminal associate will use a remote device to “wipe” important evidence off of your phone;
- A reasonable belief that data on the phone can be used to track a fleeing suspect; and
- A reasonable belief that data on the phone can be used to prevent physical harm to someone.25
Example: A young child has gone missing. Police are told that the child was last seen talking to Robert and Stanley, both of whom are subject to California’s sex offender registration requirement due to prior convictions for sex crimes involving children.
The police are unable to locate Stanley, but they do track down Robert and arrest him.
Robert tells police that he knows the child is with Stanley but that he’ll never reveal their whereabouts.
The police then seize and search Robert’s cell phone. They are hoping to find clues (in text messages, voicemails, etc.) about Stanley’s location.
This is probably a valid search even if it is done without a warrant—because there is a pressing need to locate Stanley and the child.
2.3. Phone seizures incident to a lawful arrest
Even though police need a warrant, consent, or an emergency to search the data on your phone, they may seize your phone (without looking through its data) if you are under lawful arrest.26
As a general rule, police are allowed to search the personal effects (like pockets, wallets, etc.) of suspects who are under lawful arrest, to look for weapons or evidence that might otherwise be destroyed.27 If you are under arrest, the police may well search you and find your cell phone.
They are then permitted to seize the phone and hold onto it. If they have probable cause to believe it contains evidence about criminal activity, they can then apply for a search warrant to search the actual contents of the phone.28
2.4. Pre-Riley searches incident to a lawful arrest
In California, courts will also admit evidence from cell phone searches without a warrant that were done incident to a lawful arrest—if those searches took place before June 25, 2014.29
On that date, the United States Supreme Court issued its decision in Riley v. California, holding that cell phones could not be searched in connection with an arrest unless there was a warrant (or consent, or an emergency).30
Prior to that, police in California were guided by California case law stating that cell phones could be searched without a warrant, in connection with a lawful arrest (but NOT in connection with a temporary detention/”stop-and-frisk“).31
So plenty of warrantless cell phone searches prior to the Riley decision were legal at the time when they were done. As a result, courts will not exclude evidence found in those searches.32
Example: In 2013, Paul is arrested on a traffic violation. Police search his mobile phone (without a warrant to do so) at the time of his arrest. They find child pornography images among the photos on his phone.
Under the rule in Riley v. California, the search of Paul’s phone is illegal.
But the search took place before Riley was decided in June 2014. The police were acting in good faith, in accordance with the law as it was at the time—so the images can be admitted as evidence against Paul.33
3. What Are My Rights if Police Search My Phone Illegally?
If you are accused of a California crime after an illegal cell phone search, then you have the right to challenge any evidence that came from that search.
And if that evidence is key to the prosecution’s case against you, then you may be able to get the charges against you reduced—or even dismissed altogether.
A 1538.5 PC motion to suppress is a request to the judge to throw out any evidence obtained through a search of your phone that was done without a warrant—and that did not fall into any of the exceptions described above to the warrant requirement for cell phone searches.35
For legal representation…
For questions about when police may search your cell phone/mobile device in California, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
For more information on Nevada search and seizure laws, please see our page on Nevada search and seizure laws.
- Riley v. California (2014) 134 S.Ct. 2473, 2485. (“We therefore decline to extend Robinson to searches of data on cell phones, and hold instead that officers must generally secure a warrant before conducting such a search.”)
- Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219. (“It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search [including a search of a cell phone] that is conducted pursuant to consent.”)
- Riley v. California, endnote 1, above, at 2494. (“Moreover, even though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone. “One well-recognized exception applies when ‘ “the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search [of a cell phone] is objectively reasonable under the Fourth Amendment.’ ” Kentucky v. King, 563 U.S., at ––––, 131 S.Ct., at 1856 (quoting Mincey v. Arizona, 437 U.S. 385, 394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)). Such exigencies could include the need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury. 563 U.S., at ––––, 131 S.Ct. 1849.”)
- See same, at 2486. (“Both Riley and Wurie concede that officers could have seized and secured their cell phones to prevent destruction of evidence while seeking a warrant. See Brief for Petitioner in No. 13–132, p. 20; Brief for Respondent in No. 13–212, p. 41. That is a sensible concession.”)
- People v. Macabeo (Sept. 3, 2014) 2014 WL 4352504, at *6. (“Although the warrantless search of defendant’s cell phone was unlawful under the recent decision in Riley, supra, 134 S.Ct.2473, the search falls within the good faith exception to the exclusionary rule. Thus, the failure of the trial court to suppress the evidence obtained from the search of the cell phone does not require a reversal of the trial court’s order denying defendant’s motion to suppress or his conviction.”)
- People v. Diaz (2011) 51 Cal.4th 84, 93. (“We hold that the cell phone was “immediately associated with [defendant’s] person” ( Chadwick, supra, 433 U.S. at p. 15, 97 S.Ct. 2476), and that the warrantless search of the cell phone therefore was valid.”)
- Penal Code 1538.5 PC – Motion to . . . suppress evidence. (“(a)(1) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: (A) The search or seizure without a warrant [including a warrantless search of a cell phone] was unreasonable. (B) The search or seizure with a warrant was unreasonable because any of the following apply: (i) The warrant is insufficient on its face. (ii) The property or evidence obtained is not that described in the warrant. (iii) There was not probable cause for the issuance of the warrant. (iv) The method of execution of the warrant violated federal or state constitutional standards. (v) There was any other violation of federal or state constitutional standards.”)
- U.S. Const., amend. IV [protects people from unreasonable searches of their cell phones]. (“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.”)
- Riley v. California, endnote 1, above, at 2490.
- See Riley v. California, endnote 1, above.
- Penal Code 1523 PC – Definition [of search warrants, including for searches of cell phone data]. (“A search warrant is an order in writing, in the name of the people, signed by a magistrate, directed to a peace officer, commanding him or her to search for a person or persons, a thing or things, or personal property, and, in the case of a thing or things or personal property, bring the same before the magistrate.”)
- Penal Code 1525 PC – Issuance; probable cause; supporting affidavits; contents of application. (“A search warrant [for a police search of a cell phone] cannot be issued but upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched.”)
- See same.
- Penal Code 1538.5 PC – Motion to . . . suppress evidence, endnote 7, above.
- Pasadena criminal defense attorney Neil Shouse is the Managing Attorney of Shouse Law Group. He is a former Los Angeles County Deputy District Attorney, where he worked on complex, high-profile gang, murder, and firearms cases. Now, Shouse has turned the inside knowledge he gained as a prosecutor into extraordinary expertise in criminal defense law and California evidence rules . . . thanks to which he frequently appears as a guest legal commentator on national television. He has a strong track record of successful motions to suppress evidence based on illegal and unconstitutional searches by police.
- See Riley v. California, endnote 1, above.
- Schneckloth v. Bustamonte, endnote 2, above.
- Bumper v. North Carolina (1968) 391 U.S. 543, 548-49. (“When a prosecutor seeks to rely upon consent to justify the lawfulness of a search [of a cell phone], he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.”)
- See People v. McKelvy (1972) 23 Cal.App.3d 1027, 1034.
- See Bumper v. North Carolina, endnote 18, above, at 548. (“The issue thus presented is whether a search [including a search of a cell phone] can be justified as lawful on the basis of consent when that ‘consent’ has been given only after the official conducting the search has asserted that he possesses a warrant. FN11 We hold that there can be no consent under such circumstances.”)
- People v. Hamilton (1985) 168 Cal.App.3d 1058, 1068. (“Evidence procured after withdrawal of consent [to a warrantless search of cell phone data] properly is suppressed.”)
- See same.
- Riley v. California, endnote 3, above. See also People v. Ray (1999) 21 Cal.4th 464, 467-68. (“When performing their law enforcement responsibilities, officers are required under the Fourth Amendment to obtain a warrant before searching a house or seizing personal effects [or search someone’s cell phone data]; FN1 or it must be established they acted pursuant to a recognized exception.”)
- People v. Ray, endnote 23, above, at 472. (“This justification [emergency exception to warrant requirement for searches of cell phones] requires specific, articulable facts indicating the need for ‘swift action to prevent imminent danger to life or serious damage to property . . . .’”)
- Riley v. California, endnote 3, above. See also Riley v. California at 2487. (“If “the police are truly confronted with a ‘now or never’ situation,”—for example, circumstances