Garton & Vogt Law Offices
Fighting To Protect Your Rights


An important new case from the highest court in the land prohibits law enforcement officers from conducting a warrantless search of an arrestee’s phone.

Your cellphone vibrates. Is it a call, text message, social media update or email notification? Who is it from? Your boss? Your friend? A significant other? Or maybe someone you would prefer your significant other not be aware of?

All of us have things we would rather keep private. The Founding Fathers were no different, and thus, they included the Fourth Amendment, which protects you and yours from unreasonable searches and seizures, in the Bill of Rights. But while the Founding Fathers recognized the critical role of privacy rights in a free society, they obviously did not, could not, anticipate how these rights would take form in modern America.

While the applications have changed, the original spirit of the Fourth Amendment is alive and well. On June 25, the U.S. Supreme Court handed down a ruling in an important cellphone search case that will have a resounding effect on criminal cases concerning internet sex crimes, white collar fraud and any other offense evidence of which can be stored, accessed or contextualized on a mobile electronic device.

Search incident to arrest

Even a minor misstep in the presence of a police officer can result in arrest. Under the 1947 Supreme Court case Harris v. United States, police officers are allowed to search an arrestee without a warrant regardless of what law was alleged to have been violated.

Over the years, the nation’s highest court modified the rules for searches incident to arrest in a progression of cases. But none of the previous cases had as many potentially far-reaching implications as the June, 2014 Riley v. California decision.

Riley v. California

Imagine how much information an unwelcome interloper could glean from unfettered access to your cellphone: who you have been talking to, for how long and at what time of day; recordings of voicemails, photos and text conversations; for GPS enabled phones, even timestamped maps of your physical whereabouts. If you have a smartphone – and most of us do – the universe of easily available information expands exponentially.

After seizing an arrestee’s cellphone pursuant to Harris and its progeny, many police officers, without first obtaining a warrant, had been perusing the electronic information accessible through the device. Evidence obtained through such warrantless cellphone searches originally led to convictions and harsh sentences for the defendants in Riley.

But in a unanimous decision, the Supreme Court ruled that the original reasons behind the warrantless searches incident to arrest established by Harris, the protection of officer safety and the prevention of evidence destruction, are generally inapplicable to the electronic contents of and the information accessible through a cellphone. To access the type of evidence used against the defendants in Riley, police officers will now have to first obtain a warrant.

What Riley means to you

Riley does not mean that evidence from a cellphone can never be used in a criminal prosecution. But it does force officers to get a warrant from a neutral and detached magistrate, supported by probable cause, before going into your cellphone. There is a chance a judge will deny the request for a warrant. If officers do search your cellphone without a warrant, your criminal defense attorney can get any evidence they obtain thrown out. While police are trying to obtain a warrant to search your cellphone, you may have the opportunity to demand a phone call and contact a lawyer before a search is performed.

The Riley decision is a lifeline for those facing criminal charges. Do not squander it by failing to contact a criminal defense lawyer.