Smartphones carry the story of our lives. Messages, photos, banking apps, health data, ride receipts, location history, cloud backups, and that ever-growing list of logins. When police arrest someone, they know a phone may be a goldmine of evidence. Whether they can search it, how far they can go, and what happens if they cross the line are questions that come up in my work nearly every week. The rules are not guesswork. They come from the Fourth Amendment, state constitutions, and a decade of court opinions that treat your phone like a private home in your pocket.
This is a practical walk-through of what the law allows, what it forbids, and the gray areas that end up litigated. It is not a how-to for dodging accountability. It is a roadmap so you can make informed choices and so you know when to call a defense lawyer for criminal cases who has navigated this ground before.
The backbone: Riley v. California
Start with a 2014 Supreme Court case, Riley v. California. Police arrested David Riley after a traffic stop and later searched his smartphone without a warrant. The government argued the “search incident to arrest” doctrine let officers look through any item on the arrestee to protect safety and prevent destruction of evidence. The Court disagreed as to modern phones. The justices recognized phones are qualitatively different from wallets or cigarette packs. They hold vast amounts of sensitive data, and searching them is highly invasive.
Riley’s rule, in plain terms: officers generally need a warrant to search the digital contents of a phone after an arrest. There are lawyer for criminal cases exceptions, but the default is a warrant. That single holding has reshaped day-to-day policing and defense litigation everywhere in the country.
If you take nothing else from this article, take that.
What counts as a “search” of a phone?
A search is not limited to a detective scrolling through your texts. Courts have treated a range of actions as searches of digital data. Opening a photo gallery, reading emails, browsing location history, reviewing your notes app, checking app usage logs, and accessing cloud-stored content through authenticated sessions on the phone all qualify. Pulling a phone’s contents with forensic tools like Cellebrite or GrayKey is unquestionably a search.
Even brief peeks can trigger suppression fights. I have litigated motions where an officer opened the camera roll “just to see if there were crime scene photos” while “securing” the device. Riley’s logic applies. Absent a valid exception, a warrant is required.
When police can look without a warrant
There are limited, fact-specific exceptions. In practice, these are the pressure points defense legal counsel examines closely:
- Exigent circumstances. If officers reasonably believe that immediate action is needed to prevent imminent harm, chase a fleeing suspect, or stop the imminent destruction of evidence, they can act without a warrant. In the phone context, the government often claims fear of remote wiping or encryption. Courts are skeptical of generic arguments. Prosecutors usually need concrete facts: a credible threat, a phone actively receiving delete commands, or a kidnap victim’s location at stake. As defense legal representation, we test whether those claims were real or post hoc. Consent. If you voluntarily allow officers to search your phone, they can. Voluntary means free of coercion. Consent can be revoked. It can also be limited. For example, someone might agree to show photos from last Friday but not messages. The finer point, and something I see mishandled, is scope creep: officers sometimes stray beyond the agreed category or timeframe. That can lead to partial suppression. Also, the government must prove valid consent, which becomes murky when multiple officers are present and the consent conversation was not recorded. Device “inventory” is not a pass. Police may inventory your property when you are booked, but that does not allow them to open apps, read content, or pull data. Courts distinguish logging the existence of a phone from digging into it. Plain view, with caveats. If an officer lawfully sees evidence on the lock screen or a notification preview while handling the phone for safety or identification, they may note it. But plain view does not let them unlock the phone or start navigating. More than one judge has called notification previews “accidentally broadcast” but still private once you move past the lock screen.
Those exceptions are narrow. In most run-of-the-mill arrests, none apply. That is why warrants have become the norm.
The warrant line: breadth, specificity, and time limits
Warrants for digital devices must satisfy particularity. Broad commands to “search all data for evidence of any crime” are susceptible to challenge. Most jurisdictions now expect warrants to identify:
- The crime(s) under investigation. The categories of data to be searched, such as texts, call logs, photos, GPS data, app content. Relevant time periods. The method, including whether off-device cloud data will be accessed through the phone.
As a defense lawyer, I scrutinize scope. If the alleged assault occurred on June 12, a demand to rummage through ten years of photos draws fire. Courts often restrict digital warrants to date ranges and data types tied to probable cause. When warrants are sloppy, defense litigation can produce suppression or at least limits that keep personal data outside the case.
Compelled unlocking: passwords, biometrics, and the Fifth Amendment
This is where state lines matter. The Fifth Amendment protects against compelled testimonial self-incrimination. A passcode stored in your head is generally considered testimonial. Many courts have held the government cannot force you to recite or enter a memorized code. Biometric unlocking is trickier. A fingerprint or face is often treated as a physical characteristic like a key, not testimony. Some courts have allowed compelled fingerprint or Face ID unlocking with a valid warrant. Others have pushed back, reasoning that the act implicitly communicates control over the contents and is therefore testimonial.
Practically, police increasingly seek “All Persons Present” biometric warrants during raids. Whether a judge signs off varies. As defense legal counsel, we challenge both the breadth of those warrants and the testimonial implications. If an officer physically holds your phone up to your face without a warrant, there is a strong argument for suppression.
Two tips from cases I have handled:
- Disable biometrics before an encounter if you are concerned about compelled unlocking. A phone that requires a passcode changes the legal calculus. Keep in mind many devices require a passcode after a restart or after a certain time. That can blunt quick attempts to leverage biometrics during the arrest scene.
The role of encryption and remote wiping
Police know that encryption tightens every hour that passes. iOS and recent Android versions encrypt data at rest, often making full extraction impossible without the passcode or a vulnerability. Investigators sometimes place phones in Faraday bags to block signals and prevent remote wipes. They may put devices in airplane mode or remove SIM cards. Courts have generally approved those limited steps to preserve evidence while officers seek a warrant, so long as they are minimally invasive and time-bound.
For defense law practitioners, the question is whether those preservation steps morphed into a search. Did an officer open settings and browse? Did they trigger app content to load? Seemingly small actions can cross the line.
Cloud data accessed through the phone
Modern phones are portals. If you are logged into Google Drive, iCloud, WhatsApp, or a banking app, local access may reach far beyond the device. Many warrants now expressly cover cloud content reachable from the phone. That raises two problems.
First, overbreadth. Just because a phone could reach years of cloud emails does not mean probable cause supports that scope. Second, jurisdiction. Some content may be stored abroad. Courts have varied on whether domestic warrants compel access to foreign-stored data. In practice, prosecutors often sidestep by obtaining separate provider warrants under the Stored Communications Act. For clients, it means your data footprint is larger than the device in your pocket. For a defense law firm, it means we often fight a two-front war: the device warrant and the provider warrant.
What happens if police go too far?
The remedy is suppression, and sometimes more. If police conduct an unlawful search, the defense attorney can ask the court to exclude the evidence, and anything derived from it, under the exclusionary rule and the fruit-of-the-poisonous-tree doctrine. There are limits. The government may argue inevitable discovery, claiming they would have found the evidence anyway through lawful means. Or they may assert good-faith reliance on a warrant that seemed valid at the time. These are fact-intensive battles.
I have seen judges suppress entire digital extractions where officers ran past the warrant’s time limit or fished through apps never named in the warrant. I have also seen partial suppression where courts exclude, say, WhatsApp messages but allow call logs within the date window. The result depends on how carefully the warrant was drafted and how faithfully officers followed it.
Arrest scene practicalities: what actually happens
A typical arrest looks like this. Officers seize the phone. They may power it down or place it in a Faraday sleeve. They will not, or should not, start opening apps. A detective drafts an affidavit describing the crime, the reasons the phone likely contains evidence, and the categories of data sought. A judge reviews and either signs a warrant, narrows it, or denies it.
Once they have a warrant, forensic specialists clone the phone if possible. Tools change monthly, and success varies by device model and OS version. Even on encrypted phones, they may extract system logs, metadata, and unencrypted app caches. If they cannot get in, they may return to court seeking an order to compel unlocking. That step triggers the Fifth Amendment fight described above.
From the defense side, the first move is preservation. We send notices to the prosecution to preserve device integrity and logging. Then we obtain and analyze the warrant, the affidavit, and the forensic reports. Patterns surface. Sloppy warrants are common. Overcollection is common. When a defense lawyer for criminal defense digs through the extraction, it is not just about what the state found, but what they should not have had at all.
Your rights and your words
When arrested, you do not have to answer questions about your phone, your passcode, or your apps. You do not have to consent to a search. Invoking counsel clearly and early is not a confession of guilt. It is how you protect your rights. I have watched smart, articulate people talk themselves into waived rights because the moment felt informal. An officer saying “Mind if I take a quick look?” can extinguish Fourth Amendment protections if you say yes.
If you do consent, be explicit about limits. If you decide not to consent, say: “I do not consent to any search of my phone.” Then stop talking. Anything beyond that creates room for the state to claim ambiguity.
Special cases: probationers, parolees, and workplace devices
Conditions of probation or parole can include search terms. Some jurisdictions allow warrantless searches of persons under supervision, including digital devices, when the terms expressly authorize it. Even then, courts often require the search to be reasonable and related to supervision goals. The strength of your suppression argument depends on the exact language of the supervision terms and the facts.
Work-issued devices raise different issues. If your employer owns the phone and has a clear policy that there is no expectation of privacy and that IT may inspect devices, your personal privacy claim is weaker. That does not automatically give police free rein. Officers still need legal authority. But an employer may consent to a search of its device or provide data from its management software. I have seen companies hand over device backups that dwarfed anything on the handset itself. If you are under investigation and use a company device, call a legal defense attorney before you touch that phone again.
Location data and geofences
Police increasingly use location data, both historical and real-time. Warrants to carriers for cell site location information are standard after the Supreme Court’s Carpenter decision, which held that accessing seven days or more of historical CSLI generally requires a warrant. Another growing tool is the geofence warrant, which asks a tech company for information about all devices within a geographic area during a time window. Courts are split on whether geofences are sufficiently particular or unconstitutionally broad dragnets. Defense litigation in this area is active, and results vary by circuit and state.
From a defense law perspective, these warrants can be vulnerable: insufficient nexus, weak probable cause, and overbreadth. They can also misidentify people. I have had clients flagged in a geofence simply because their phone passed on an adjacent street with a strong signal bounce. Good lawyering and good experts matter here.
The myth of the “quick peek”
Clients sometimes tell me an officer said, “I’m just going to take a quick peek to see if there’s anything we need to worry about.” There is no “quick peek” exception. Either there is a warrant, a valid exception, or not. If an officer opens your phone and starts looking around without one of those, the path to suppression opens. The same applies to “just checking for officer safety.” Safety justifies securing the phone so it cannot be used as a weapon or remote detonator, not browsing through photos.
How a strong defense challenges a phone search
A defense attorney who knows digital cases starts by assembling the timeline. When was the phone seized? Where? Who handled it? Was it powered on or off? Did anyone interact with the screen? Was it bagged? When did the warrant application go in? How was it executed, and by whom? Did the extraction method line up with the warrant’s scope? Did the state maintain a forensically sound chain of custody?
We then measure the affidavit against probable cause standards. Boilerplate like “Drug dealers commonly use cell phones” appears everywhere. Courts want more: facts tying your phone to the alleged conduct. We also assess particularity. Vague, sweeping language is an invitation to move for suppression. If the state admits they saw something before the warrant issued, we trace that path and argue taint.
In many cases, targeted motions win partial victories that change leverage. Excluding one app’s content or a chunk of time can strip a case of admissions or location points the prosecutor was counting on. That is how defense legal representation shifts outcomes quietly before trial.
Practical advice if you are arrested with a phone
Here is one short list worth memorizing.
- Say clearly that you do not consent to any search of your phone. Ask for a lawyer and stop discussing your device or passcode. Do not try to delete data or power off a device while officers are seizing it. That can escalate and may be charged as tampering. Avoid using a work-issued phone for personal matters if you are anywhere near an investigation. After release, write down the sequence of events you remember: statements made, who handled the phone, whether the screen was touched, and any consent discussions. Share that with your defense attorney.
State-by-state wrinkles worth noting
While Riley sets the federal baseline, states can add protections under their constitutions. Some state supreme courts require heightened particularity in digital warrants. Others limit biometric compulsion more strictly than federal courts. A few have statutes addressing notification previews or restricting geofence warrants. The differences matter. A law firm criminal defense team that regularly practices in your jurisdiction will know which judges scrutinize digital warrants closely and which prosecutors overreach on scope. Local knowledge is not optional in these cases.
What about phones belonging to someone else?
If you were arrested in a friend’s car and officers seize your friend’s phone from the console, can they search it? The owner’s privacy rights are strongest. Your standing to challenge the search depends on your relationship to the device and data. In general, you cannot assert someone else’s privacy rights. There are exceptions if the data at issue reflects your own communications or if you had a joint expectation of privacy, but those are uphill arguments. When multiple people are arrested together, it is common for each to argue the other consented. Paperwork and recordings become critical, and contradictory police reports are more common than people think.
The human side: how phone evidence plays in court
Jurors trust screenshots more than they should. A line of text on a projected exhibit carries weight. That makes chain of custody and authenticity challenges important. Who made the screenshot? Was the device in airplane mode? Do the metadata and hash values match the forensic extraction? Did the exhibit alter the color profile that hides a “deleted” banner? I have seen doctored screenshots and honest mistakes alike. A defense lawyer for defense must insist on the full extraction and independent review. If the state cherry-picks, we expose it. If context helps, we fight to include it. If the data is unreliable, we move to exclude it.
Digital minimalism as legal hygiene
No one lives a risk-free life, but a few habits reduce exposure. Lock your phone with a strong passcode, not just a simple swipe. Disable lock screen previews for sensitive apps so plain view does not reveal more than you intend. Separate personal and work devices. Turn on automatic backups with care, understanding that cloud data is often easier for the state to obtain. Keep your OS updated, not to hide anything, but because forensic tools exploit old bugs. These choices are not about expecting the worst. They are about not making it easy for a bad warrant to become a fishing expedition.
When to bring in counsel
If police seized your phone, talk to a defense lawyer early. Do not wait for an indictment. In several cases, early engagement let us challenge an overbroad warrant before the state ran a full extraction, saving clients from years of personal data falling into government databases. Defense attorney services include not just courtroom work, but coordinating with digital forensics experts, filing targeted motions, and negotiating narrowed searches that fulfill legitimate investigative needs without exposing your entire digital life.
A seasoned defense law firm has procedures for handling device evidence, from protective orders to clawback agreements. Those procedures can spare you collateral damage, like private photos circulating among investigators or third-party data entering the record unnecessarily. The difference between a lawyer who “does criminal law” and a lawyer for criminal defense who regularly litigates phone searches is measured in the questions they ask on day one.
Final thought
Police can seize a phone during an arrest. They usually need a warrant to search it. The exceptions are narrow, the details matter, and mistakes by either side shape outcomes. If your device is in play, the right move is simple: assert your rights, stay quiet about your passcode, and get defense legal counsel who knows the terrain. Digital evidence is not magic. It is evidence, with rules. A capable legal defense attorney makes sure those rules are honored.