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Law v. Technology: Can police search a password-protected phone?

January 12, 2012

The use and technical abilities of cell phones have certainly advanced over the last ten years.

As a result, issues have arisen concerning the ability of the police to retrieve information from a password-protected cell phone during an arrest.  In Georgia, cell phone searches have become commonplace in drug trafficking cases, child pornography and other sex offense cases, domestic violence cases and even in bank robbery cases.

Under the Search Incident to Arrest Doctrine, police officers are permitted to conduct a warrantless search of an arrestee following a lawful arrest. Over the years, this doctrine has been expanded to include searches of automobiles, containers, closed compartments and, in some instances, cell phones. The rationale for expanding the doctrine to include cell phones is based on the idea that a cell phone is considered an electronic container and the Supreme Court has consistently upheld the search of containers incident to arrest. Some courts have rejected warrantless searches of cell phones, while others have upheld them only if conducted during a valid search incident to arrest.

In Hawkins v. State, a Georgia Court of Appeals case, the court upheld the warrantless search of a cell phone incident to arrest.  However, such a search is limited to the data on the phone that is reasonably likely to lead to evidence of the crime for which the person is being arrested. Thus, if you are being arrested for driving under the influence, the police cannot search your photos or check your emails.

One question that has not been answered though is whether an arresting officer has the authority to break into a password-protected phone. The answer to this question would most likely depend on whether an arresting officer can break into a locked container. Although the Supreme Court has never directly stated whether the right to search containers extends to locked containers, some lower courts have answered this question in the affirmative.

For example, in Illinois, courts have upheld the warrantless search of locked footlockers found in an automobile during a search incident to arrest. Also, courts in Pennsylvania have held that the police may open locked briefcases during searches incident to arrest.

There is little doubt that the courts in Georgia will soon be presented with the issue of an arresting officer’s authority to break into password-protected cell phones. How the courts will decide this issue is yet to be seen.  Georgia criminal defense attorneys will undoubtedly be seeking to suppress any evidence obtained as a result of a warrantless search of a password-protected phone.  However, in light of the courts’ continued expansion of searches permitted incident to arrest, it is quite possible that the courts will one day be permitting these searches.

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