CAN THE POLICE SEARCH MY CELL PHONE BEFORE OR AFTER I'M ARRESTED?
That answer is complicated - the US Supreme Court says yes, although most Federal and State courts say no.
The only reason police have a right to search a person or a car after they've been arrested - WITHOUT A SEARCH WARRANT- is for the preservation of evidence and officer safety (or if they impound your car which is an entirely different topic).
For example, if you are arrested in your home, they do not have the right to search your entire house, unless they fear for their safety or they fear that evidence of the crime might be found in the house and if they don't search, it will possibly be destroyed. (guns and drugs are good examples of this).
In the case of a cell phone, there is clearly no officer safety issue, unless you've McGyver'ed your phone with a gun. Also, the courts have ruled that a cell phone is not a container, which provides another exception to warrantless searches.
As to the issue of preservation of the evidence, once the police have confiscated your phone, and you no longer have access to it, there's no fear that any potential evidence, such as incriminating text messages, a phone log, or the address book - can be destroyed since the arrested person no longer has access to it.
There's a further issue of the expectation of privacy in a cell phone. Prior appeallate court decisions have based their opinions on pagers - cell phones are much more sophisticated with emails, videos, pictures, etc. Clearly people have all sorts of things on their cell phones that they intend to keep private, beyond things that are potentially illegal.
There's a recent case out of Brevard County, Florida, a Circuit Court case, where the judge writes a great narrative on the case history of searches. (I found it on Florida Law Weekly Supp. and couldn't figure out how to get a public link for it) It's called State v. Glasco and ultimately the court GRANTS the suppression of evidence found in Glasco's cell phone after his arrest.
Circuit Judge John Harris writes: "If courts continue to allow the unfettered exploration of this personal data, then courts are permitting the government to execute an unwarranted search of the cell phone user's life and habits. This intruision cannot reasonable be justified by the rationales of officer safety and evidence preservation; therefore, a simple seizure of the cell phone must suffice until a WARRANT can be procured."
I can only hope the judges in the Fifth, Sixth, and Thirteenth Circuits feel the same way.
If your cell phone has been searched -CALL ME - you may have a good Motion to Suppress.
