Arrested? Here’s What Police Can Legally Search – Protect Your Fourth Amendment Rights

Facing an arrest can be daunting, but understanding your Fourth Amendment rights, especially concerning searches, is crucial. Criminal defense attorneys William Pernick and Alena Wilson break down what you need to know about “search incident to arrest” and the critical protections for your electronic devices. Get insight into when police can legally search you.

When police make a lawful arrest, they are permitted to conduct a warrantless search “incident to arrest.” However, this isn’t a free pass. The search is limited to the area immediately within the arrested person’s control. The purpose? To ensure officer safety (preventing access to weapons) or to prevent the destruction of evidence. If a search goes beyond this immediate area or these two objectives, it’s likely unlawful, and any evidence found could be excluded from your trial.

Is Your Cell Phone a Special Case in a Search Incident to Arrest?

Even if your cell phone is in your immediate control, the U.S. Supreme Court case Riley v. California (2014) established a vital protection: police generally need a warrant to search your cell phone, even after a lawful arrest. This landmark unanimous decision recognized that cell phones are treasure troves of personal information, akin to diaries, containing vast amounts of private data. Searching a phone without a warrant is considered an invasive violation of Fourth Amendment rights.

The Riley case itself involved a man arrested for a traffic violation, whose phone was searched incident to his arrest, revealing incriminating gang evidence. The Supreme Court decisively ruled that the extensive privacy implications of cell phone data override the immediate control exception.

Key Tips to Protect Yourself:

1. Understand Search Limits: A search incident to arrest is limited to your immediate control for officer safety or evidence prevention. Anything beyond that requires a warrant.
2. Do NOT Consent to Searches: Politely but firmly state, “Officer, I do not consent to any searches. You are welcome to obtain a warrant.”
3. Protect Your Devices: Use strong passwords and encryption on your smartphones, tablets, and laptops. Police cannot force you to provide your password.
4. Never Talk to Police Without an Attorney: If you’re the target of an investigation, do not make any statements to police. Anything you say can be used against you. It’s always safest to communicate through your attorney, who can provide information without it being held against you.

Remember, protecting your privacy and rights starts with knowing them. Stay informed about when police can legally search you and always seek legal counsel if you find yourself in trouble.

Contact our firm today to learn how to protect your rights.