During an investigation, police will often seize a suspect’s cell phone or phones. And one of the most common questions I get as a defense attorney is “Can the police do that?” And while the law gives police some latitude in investigating a case, there are constitutional limits on what they can do.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const., amend. IV. This means that generally, seizures of personal property are unreasonable without a warrant. But, the Supreme Court has created a few notable exceptions. Police may temporarily seize property without a warrant if they have reasonable suspicion a crime is occurring or probable cause to believe the item contains evidence of a crime.
But a seizure of property that is lawful at the beginning can still violate the constitution if it unreasonably infringes on possessory interests. For instance, a seizure that is lawful at the outset may become unlawful if a warrant is not obtained in a reasonable period of time.
There is no bright line rule when a delay becomes unreasonable (and therefore violates the Constitution). Rather, it is a very fact specific inquiry.
Cell phones are one of the most commonly seized items during an arrest. Because a cell phone is presumed to have all sort of personal information on it, it is highly protected and cannot be accessed without a warrant. Illegally seizing and holding a cell phone without cause can also lead to a civil lawsuit.
Assuming that a defendant hasn’t consented to a seizure or search of their phone, they will maintain a possessory interest in their phone. That interest is diminished but still exists even if they are incarcerated.
Next, courts consider how long an item was seized. The longer the phone was seized before a warrant signed by a judge was obtained, the more likely it is the seizure has become unlawful. Law enforcement has an affirmative obligation to use reasonable diligence to obtain a warrant. They are given more deference if the phone is seized as part of a complicated investigation or if the warrant was particularly detailed, and less if the warrant is simple. They are also given more deference if there is a probable cause seizure–they know there is incriminating material information on phone, and less if there is no direct evidence that it contained evidence of a crime.
One of the key determinations in this analysis is how diligently did law enforcement seek to obtain a warrant. A delay in obtaining a warrant without sufficient justification usually violates a defendant’s Fourth Amendment rights.
Evidence obtained after an unlawful delay is subject to the Exclusion Rule and should be suppressed (kept out of a potential trial). This is true regardless of the state since this evidence would violate a federal constitutional right. This admission or exclusion of evidence from a phone can be the difference between a conviction and an acquittal or dismissal. So, just because police got a search warrant and found evidence on a phone doesn’t mean that search was legal. An attorney well versed in this area of law is essential is combating this type of evidence.