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There has been a lot of talk lately about whether or not a cell phone can be searched without a warrant. This is an interesting topic and the answer is not clear, yet. Now, I do not plan on being in a situation that requires me (or my phone) to be searched by police and nor do I have anything to hide, but this is a serious issue.

Different Courts Have Ruled Differently on Cell Phone Searches

Recently, the 1st U.S. Circuit Court of Appeals, based in Boston, declined to review a decision that would require police to get a warrant prior to searching a cell phone. The 1st Circuit Court stated that this was an issue to be decided by the U.S. Supreme Court. So as of today, they join both the Ohio and Florida Supreme Courts and require a warrant to search a person’s phone. Other courts have ruled the opposite, that no warrant is required.

There are too many standards courts have created to guide law enforcement and truly the answer is just not clear until the Supreme Court of the United States makes a ruling.

Police Who Arrest Someone Can Search Their Person

Why is this an issue exactly? Well, the law states we are protected from unreasonable searches and seizures and that generally a search warrant is required.  This legal protection is outlined in the 4th Amendment to the United States Constitution. However, once arrested, police officers may search the body and surroundings of the person arrested.  This is the “search incident to arrest” exception.

So, on face value, if you are arrested and your phone is on your person, it can be searched. The dilemma is when the 4th Amendment was passed there were no cell phones and no smart phones. Our phones today have so much information on them that searching it could hash up a lot of issues, even some not pertinent to the arrest. Prior to smart phones this information would not normally be on your person and would require a search warrant to look inside your house or office.

Can Police Track Cell Phone Locations?

Along the same lines of the issue above, courts are also trying to determine whether police may track a cell phone location without a warrant. Unfortunately, again, the different courts are coming up with different answers.

My question is this: If you have nothing to hide, why would it matter? Or are we living in George Orwell’s book 1984?