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Warrant required? Cellphone owners may not be protected in these situations.

When ringing in the New Year, you may have resolved to limit time you devoted to surfing or texting on your cellphone. If you're like many Americans, however, the urge to grab the phone to respond to whatever message has been sent your way may override any well-meaning goals proposed in the early hours of January 1. The desire to use this device to document all aspects of daily life, maintain a database of contacts and stream shows may have elevated the status of your smartphone in your eyes. Some people may claim they can't live without their cellphone; you may find yourself entering that camp of cellphone adherents.

Supreme Court Chief Justice Roberts echoed this sentiment in explaining the court's decision to require warrants be obtained before searching a cellphone. Citing the "pervasive and insistent part of daily life" that cellphones play in facilitating transactions, recording images and communicating with others, Chief Justice Roberts extended the same protections to cellular devices as are provided to homes.

In many situations, law enforcement is prohibited from searching a smartphone without court authorization. As will most aspects of the law, however, there are exceptions to this ruling. These three scenarios negate the need for police officers to obtain a warrant to search your phone:

1. You voluntarily hand your phone to a police officer.

Individuals attempting to gain favor of officers may grant whatever requests the officer makes. While this strategy may lessen initial conflict, it can lead to long-term issues with law enforcement. Yes, it is important to be respectful to a police officer; however, you do not need to help the officer build a case against you. Handing over your cellphone is akin to opening your private life for all to scrutinize and use as they deem fit. Innocuous pictures saved to your phone can be taken out of context and contorted to suit the purpose of law enforcement.

In providing a cellphone to police officers, you are allowing them to access your software and search history. Should you change your mind after having handed over the device, the police are not required to return it.

2. The officer suspects your phone could be used as a weapon.

Should the officer believe that your device could be used to cause physical harm, he may confiscate it. In this situation, the police office may only inspect the phone's hardware, such a cellphone battery or cellphone cover, to search for any small or sharp weapons that may be embedded. Once the officer has obtained the phone, however, he may keep it on his person until a warrant is granted for a search of its software.

3. There are exigent circumstances that require the officer take control of your phone.

What is considered exigent, or emergent in nature, can be a bit cloudy. Officers who believe that information stored on a phone could be used to stop an individual from being harmed, to locate a suspect or to prevent evidence from being destroyed, may seize a phone without the court's permission.

It's possible that your New Year's cellphone resolution will disregarded by the end of the month. Rather than resolve to relinquish your phone, make a commitment to hold fast to your smartphone. The Supreme Court saw fit to extend protection to the information stored on the device. Know what circumstances require surrendering your phone to officers and safeguard your cellphone in the circumstances that fall outside of those three listed in this post.

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Gregory R. Gifford
  • RGS&G Firm News

    "Gregory R. Gifford, a partner at the Lansdale law firm of Rubin, Glickman, Steinberg and Gifford, P.C., was elected Vice President of the Montgomery Bar Association on January 13, 2017. Mr. Gifford is a past Director of the Association and has also served as its Treasurer and Secretary"Read more...

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Rubin, Glickman, Steinberg and Gifford has been a member of the local Penn Suburban Chamber of Commerce (previously known as North Penn Suburban Chamber of Commerce) for more than 25 years.

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