The Bill of Rights prevents law enforcement from searching cell phones during a traffic stop without a judge-issued warrant.
The Fourth Amendment prohibits “unreasonable search and seizure,” which means police cannot search a person or their property without a warrant or probable cause. The Texas Constitution Article I Section 9 confirms a person’s right against unreasonable searches and seizures. In 2014, the Supreme Court held in Riley v. California that a person’s cell phone can’t be searched by law enforcement without a valid warrant because there’s a reasonable expectation of privacy.
While an officer can ask to look at your phone, you can decline that request. If they do so without consent or a valid search warrant, any evidence gathered is inadmissible in court, according to Fort Worth lawyer Benson Varghese.
However, there are rare circumstances in which an officer can search someone’s phone without a warrant. That’s when an officer reasonably believes that it’s necessary to prevent physical harm to officers or others, the destruction of evidence or the escape of a suspected felon. During a traffic stop, those circumstances could exist if the driver flees the scene, though an officer must still show they had probable cause that the phone contained criminal evidence for a warrantless search.
What the U.S. Constitution says about phone searches
The Fourth Amendment states the following: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Texas Constitution says: “The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.”
When can Texas police search your phone without a warrant?
Those emergency situations typically involve the following, per Varghese:
Protection from imminent danger or death
Protection of property, such as extinguishing a fire or stopping a burglary
Preventing the destruction of evidence
Pursuing a fleeing felon
Can Texas police search your phone after you’ve been arrested?
Police officers must have a search warrant to search someone’s phone even after the person has been arrested, according to Varghese. You have the right to refuse a search before, during and after an arrest.
How about evidence obtained from a phone’s lock screen?
A case decided in 2020 found that law enforcement cannot use information from the lock screen of a cell phone. Incoming calls, text messages or any other incriminating data viewed on the phone screen cannot be used to prove guilt or as evidence in a criminal case. A judge-issued search warrant is required to use such evidence.
Can Texas police search my phone through a third party?
The data stored on your cell phone is protected under the 1986 Stored Communications Act, per Varghese, so internet service providers must protect the electronic privacy and stored data of their customers. Law enforcement is required to have a valid search warrant before gathering cell phone data and other information from third-party ISPs.
Can police force you to unlock your phone?
Some states including New Jersey, Massachusetts and Vermont claim that police officers have the authority to force you to unlock your phone, meaning you do not have the right to decline a request to unlock your phone, per the Chambers Law Firm.
Other states including Florida, California and Virginia claim that doing so would violate your Fifth Amendment protection against being forced to incriminate yourself. There, you have the right to refuse an officer’s request to unlock your phone and they cannot force you to do so. Law enforcement often needs a court warrant to force you to unlock your smartphone.
As for Texas, you can refuse to unlock your phone for law enforcement unless they have a warrant, according to the Shapiro Law Firm.