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Police Search of your cell phone

Less than 2 years ago, the Georgia Supreme Court affirmed a decision by the Court of Appeals holding that a search of the text messages contained in your cell phone is proper following an arrest for selling drugs.

In that particular case, the defendant had unknowingly set up a sale to an undercover officer via text messages. When she arrived to make the sale, she was arrested. The arresting officer then searched her car for her cell phone, searched her cell phone for the text messages, printed the messages and used them at trial.

The Supreme Court, long ago, held that a search incident to arrest is proper. This is why police are permitted to engage in a pat-down of you and are permitted to search your pockets after they've placed you under arrest for anything. Should they discover evidence of another crime, you will be charged for that crime and the evidence they discover during the pat-down is admissible.

When it comes to vehicles, Police are permitted to search it (and any container within) for evidence of the crime for which you are being arrested. If arrested for DUI, Police may be permitted to search for an open or empty bottle of alcohol (for example). If arrested for driving on a suspended license, a search of the glove box would probably be inappropriate.

As the Georgia Supreme Court reasoned, based on how the defendant came to be at that location, searching for the defendant's cell phone, and the contents of the cell phone, was reasonable under the circumstances. The Court did say that the police did not have reason to comb through everything in the phone on a fishing expedition for evidence of other crimes.

The holding in this case is narrow. It does not mean that police may search your phone following ANY arrest and you should never grant them permission to do so. If possible, when stopped by police, you should record the encounter any way you can. Also, you should turn on the password protection feature to ensure the recording of the encounter cannot be deleted and your phone cannot be searched without consent.

There are smartphone apps at http://www.copblock.org/apps/ that allow you to record your encounter with law enforcement and to immediately upload that encounter to a website to avoid deletion should police become aware of the recording and seek to delete it.

Obviously, your decision whether (or not) to record your encounter with law enforcement should be based on whether or not you wish to protect yourself from a violation of your rights. It is also noteworthy that approximately four states have laws  which make it a crime to record police encounters without the consent of all parties. Please consult local law before utilizing the copblock app.

For additional help, you can visit my website at www.carnellfirm.com. You can also email me at jason@carnellfirm.com or call me at 770-729-4809.

- Jason Carnell

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