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Can Police Officers Search Through My Smartphone?

Chad West Oct. 19, 2013

You've been pulled over for swerving slightly out of your lane, and the officer says he smells the odor of alcohol coming from your car.  It's actually the "leather" scented freshener that you asked for at the car wash...which smells oddly like cheap whiskey.

But you DID have a couple of drinks at dinner, and although you felt fine to drive, you don't feel comfortable taking the field sobriety tests.  So, you refuse. You know what happens next.  You get arrested. Upon the initial stop, the officer asked you why you swerved, and you told him the truth - it was because a text message "dinged" on your phone, and you glanced down at it for a split second. Now, the officer wants to look through your smart phone to see whether your phone actually "dinged" or not.  You don't want him to look through your phone right now because there are confidential text messages from a high profile client and possibly a sexual photograph or two of your wife in there - you can't remember if you deleted them! But can he look through your phone despite your protests?  Can he look through it without taking the time to get a warrant? The answers may surprise you. The Supreme Court of the United States (SCOTUS) has a new issue to tackle—can police seize and search smartphones?  Do they need a warrant to do so?  Most people know that police typically need a warrant to search their home, and in many cases, they need to seek a warrant to search a car.  But what about your fifth limb, your phone? The answer, unfortunately, is unclear. Most of the folks reading this article are in Texas, so I will focus on the law as it relates to the 5th Circuit.  In the 5th Circuit, we are currently bound by the holding in U.S. v. Finley, a 2007 case, involving an arrest of a suspect for distribution of drugs.  After a lawful arrest, the officer removed Mr. Finley's flip-style cell phone from Finley's pocket.  At the station, the officer searched the phone's call log and text messages (without a warrant) hoping to find evidence of who else was involved in the alleged drug ring.  Evidence found on the phone caused Finley to incur enhanced charges.  Finley sought to suppress the evidence found on the phone, claiming that the search was illegal, and the police could not search it without a warrant. The 5th Circuit disagreed, holding that the warrantless search of a person extends to "containers" found on that person, and a cell phone was a "container."

What is a Container, Really?

The Circuits are split right now on whether officers can search smart phones without a warrant.  Other Circuits don't believe that cell phones are "containers" in the traditional sense because in the past, the definition of "containers" has typically referred to cigarette packs, storage lockers, briefcases, and other tangible items that don't store a person's living record.  Very soon, SCOTUS will likely issue a ruling that sets a clear precedent across the county. Opponents of warrantless searches of cell phones argue that warrantless searches of a person's phone violate our Fourth Amendment right to privacy.  The opponents say that smart phones are mini personal computers that can store huge amounts of personal information, far in excess of what could be held in other "containers."  And by accessing smart phones, the government would have unlimited access to data about a person's friends, relatives, lovers, bank accounts, intimate sexual encounters, embarrassing legal problems and debts.  As such, a search incident to arrest could become a search of medical records, banking activity, and work-related emails that have no bearing on the actions that led to a suspect’s arrest.

Although some officers, when rifling through the contents of a person's smart phone, would undoubtedly limit their search to relevant evidence, other officers would certainly abuse this power.  Just a few years ago in Culpeper, VA, officers arrested a teacher for DUI, and while searching through his phone, found and distributed naked photos of the teacher's girlfriend.  The officers allegedly even sent out calls on the police radio inviting other officers to come in and look at the photos.  See

May the Fourth Be With You Currently, the Supreme Court observes two cases from the early 1970s that suggest that warrants may not be required for searches of phones.  However, those cases (U.S. v. Robinson and U.S. v. Edwards) were from a different era, and some say they should have no place in a smartphone debate.  These two cases were the foundation that “things” like briefcases, cigarette cases, and clothes could be searched without a warrant after a suspect has been arrested. Are smartphones more than a container nowadays, and where is that line drawn?   For now, in Texas at least, phones are containers, and officers can search through all of their contents without a warrant.

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