In California, search and seizure law applies emphatically to digital devices. A cell phone search is among the most intrusive kinds of searches law enforcement can conduct — because phones contain deeply personal data like messages, photos, location history, and more.
Understanding your rights around warrant requirement, consent, password protections, and border issues is key to protecting your privacy and defending yourself in court.
Under the U.S. Supreme Court’s landmark decision Riley v. California, police generally must obtain a valid warrant, based upon probable cause, before searching a cell phone’s digital contents — even when the phone is seized incident to a lawful arrest.
In California, this court decision is reinforced by both state and federal constitutional protections, including the Fourth Amendment of the U.S. Constitution which protects people from unreasonable search and seizures by the government.
However, there are important exceptions:
- Consent — If you voluntarily allow law enforcement to search your device, they can do so without a warrant.
- Exigent circumstances — In emergencies (e.g. preventing harm, escape, or destruction of evidence), officers may conduct a warrantless phone search.
- Probation or parole — If your terms include waiver of digital search rights, law enforcement may search without a warrant in those situations.
- Border issues — At U.S. border crossings or ports of entry, the government may claim broader authority to inspect devices without a warrant or probable cause, albeit with limits guided by evolving case law and statutory protections.
Even when police seize your phone without immediately searching it, they can hold it while seeking a warrant later — effectively delaying your access to your device.
WHAT TO SAY (AND NOT SAY)
When law enforcement asks to search your device, what you do or don’t say can make a huge difference in preserving your rights:
- Do not consent — Firmly and politely say, “I do not consent to a search.” That preserves your rights and signals that any subsequent search may be challenged.
- Revoke consent — If you initially said yes under pressure or confusion, you can later clearly revoke consent: “I withdraw consent” or “I no longer permit this search.”
- Lock device — Whether via password, PIN, or biometric, maintaining control over access strengthens your argument that law enforcement needs judicial authorization.
- Ask for lawyer — If you believe coercion or interrogation may follow, request legal counsel. It’s your constitutional right.
- Remain silent — You are under no obligation to explain, elaborate, or justify. Attempting to debate officers or explain your actions risks self-incrimination.
These steps don’t guarantee exclusion of evidence — but they improve your chances of prevailing on legal challenges to overbroad or unlawful searches.
SUPPRESSING DIGITAL EVIDENCE
Challenging improper phone searches often centers on motions to suppress under California Penal Code § 1538.5. Through such motions, defense attorneys request that unlawfully obtained digital evidence be excluded from trial.
Here are the main considerations and strategies:
- Scope limits — Even with a warrant, a search must stay within defined parameters. If law enforcement exceeded the warrant’s scope (e.g. searched parts of the phone not specified), evidence may be suppressed.
- Third-party data / cloud accounts — Accessing data stored off-device (cloud backups, third-party servers) often requires additional warrants or processes under electronic communications laws.
- Chain of custody and integrity — Demonstrating gaps or tampering in how digital data was handled can undercut admissibility.
- Good faith exceptions — If law enforcement acted under a defective but facially valid warrant, some courts permit retaining evidence. Defense must attack both the warrant and its execution.
- Multiple suppression angles — A skilled attorney may combine arguments: improper warrant, invalid consent, exceeded scope, or unconstitutional seizure.
Do you want help drafting a motion to suppress or evaluating whether your phone search was lawful? Contact us for a case-specific review — digital evidence is complex, but with the right legal counsel, you may significantly weaken or dismiss evidence the prosecution depends on.
