Garton & Vogt Law Offices
Fighting To Protect Your Rights


If you have been charged with a sex crime, drug crime, white collar offense or any other violation of the criminal law, the Fourth Amendment can be a powerful shield against obtrusive law enforcement tactics. The Fourth Amendment enshrines your right to be free from unreasonable searches and seizures conducted by the government.

A criminal defense attorney can get evidence collected in violation of this right thrown out in court. For example, if a police officer searched the trunk of your car without any justifiable suspicion of wrongdoing and discovered illegal drugs, those drugs could be excluded from evidence. Often, the government’s entire case rests on the fruits of an illegal search; the case evaporates if that evidence is tossed out.

But where is the line between an illegal search and a proper search? With the proliferation of advanced technologies, it is constantly shifting. On April 29, the U.S. Supreme Court heard oral arguments in a pair of cases that will have vast implications for police searches concerning a piece of technology that has become ubiquitous in modern society: the cellphone.

Police generally need a warrant but argue cellphone search is incident to arrest

“Mobile phone” is a stunningly inadequate phrase to describe the tiny handheld computers that most of us carry around in our pockets every day. Notes, photos, calendars, contact information, videos, social media accounts, even a GPS record of physical locations may all be accessible through a cellphone. A mobile device can be a treasure trove of information for cops looking to gather evidence of a crime.

Normally, a police officer must obtain a warrant supported by probable cause – an amount of suspicion based on specific circumstances that would justify a reasonable person’s belief that given facts are probably true – before conducting a search. There must be probable cause that evidence of a crime will be found in the place to be searched. However, over the years, courts have developed a number of exceptions to the warrant requirement.

One of the exceptions is a search incident to arrest. Once you have been validly arrested, the police can search your pockets and items within your reach without a warrant. According to the Pew Research Center, over 90 percent of Americans own a cellphone; cops find one in almost every search of a suspect’s person.

But can the police go into the electronic contents of a cellphone before obtaining a warrant? In the two pending Supreme Court cases, officers did just that, and found incriminating information that led to sentences of 15 years and 22 years for the two defendants, respectively, for various violent crimes and drug crimes.

Decision will change criminal cases for years to come

The existing rule is that unlocked “containers” may generally be opened and fully searched incident to arrest. For instance, police could go through the wallet of an arrestee or look within his or her cigarette case.

While it is unclear how the Supreme Court will ultimately rule on the constitutionality of the warrantless cellphone searches in these cases, at oral arguments, it was crystal clear that the justices see sifting through the world of electronic information contained on a smartphone as very different from digging around in a purse or wallet. Whatever is decided will have a far-reaching effect on future criminal cases.

If you have been accused of committing a crime, your lawyer can get evidence collected in violation of your rights, electronic or otherwise, thrown out. Contact a criminal defense attorney today to fight the charges against you.