Cell Phone Search Incident to Arrest

Many clients ask me about whether cops can search their cell phones upon arrest.  The answer, as terrible as it may be, is YES!!!  The California Supreme Court declared that cell phone searches incident to arrest are legal and do not violate a person’s Constitutional rights.  Normally, for a cop to conduct a search of your person or premises, they must have a warrant.  An exception to this is a search incident to arrest.  This means that a cop has the right to search your person when you have been placed under arrest in order to document everything on you.  This is done under the guise of making sure that you get all your property back when you leave custody.  Arguably, it’s a reason to rifle through your pockets when they don’t have probable cause to do so otherwise.  The cops can now claim leeway in snooping through your cell phone as a search incident to arrest.

In 2011, the California Supreme Court included snooping through your cell phone, including reading private text messages, as searches allowable as “incident to arrest”.  Anything they find there can be used against you to either enforce current investigations or to start new investigations.  For example, let’s say that you are arrested for possession of meth.  The cops do not have anything to tie you to a sales charge, other than a large amount that they found with you when you were arrested.  They take you to the station and proceed to book you.  One of the cops takes your cell phone and starts scrolling through your messages.  In between texts to your mother about what time to be home for dinner, and a text to your buddy about the recent football game, the cops stumble upon a text you sent that reads a lot like a plan to sell the drugs “Meet me in the alley b hind KMart with cash.  I’ll have the dope.” There you go- you have now picked up a sales charge.

Or, let’s say you are being charged with a robbery.  The cops want to charge you with a gang enhancement, but just don’t have enough to pin that on you just yet.  They look through your phone.  Oh, here’s texts from Pookie and Lil G, two known and reputable gang higher-ups.  There’s the proof for the enhancement.

While this blog no way endorses drug sales or drug use, it does aim at protecting people from harming themselves by way of additional evidence which cops can now attain.  Do not put things in writing.  Do not save old messages.  Do not leave your phone without password protection.

Contact the Law Office of Stephanie M. Arrache, a criminal defense firm, if you have any questions about cell phone searches incident to arrest.

Law Office of Stephanie M. Arrache

A Criminal Defense Firm

PO Box 3297

Palm Springs, CA 92262

Office: (760) 237-8295

Cell: (760) 668-8295

www.stephaniearrache.com

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