Is your Smartphone constitutionally protected from a warrantless police search?
That’s a question the South Carolina state legislature could take up this year. A bill pre-filed in November would not allow officers to search a cell phone or other portable electronic communication device without a warrant.
The bill’s sponsore, Rep. Garry Smith (R-Simpsonville), said phones have become advanced enough where it’s now an issue. “Because of the data we keep on our electronic devices now, whether it’s your iPad or iPhone, it can be paramount to coming into your house and searching your file cabinet,” he told South Carolina Radio Network, “It gets into the issue of what’s appropriate under the Fourth Amendment and what’s not.”
Different states have so far moved opposite directions on the issue. Some courts, such as in California, Florida, and Georgia, have allowed warrantless searches after a phone’s owner was arrested. However, the Ohio Supreme Court has banned them. Smith said the issue in South Carolina so far has mostly popped up in family court or child custody cases.
Rep. Tommy Pope (R-York), a former solicitor, said there are several reasons police officers would want to search a person’s phone after an arrest– such as checking a person’s alibi or looking to see who that person is calling and texting.
“It’s the same reason law enforcement wants to look… through your car or your briefcase,” Pope said, “Your phone is a container that contains important data that may help law enforcement in their investigation.”
In scattered cases around the country, law enforcement officials have traditionally been allowed to search a phone “incident to arrest” or in “exigent circumstances.” In other words, courts would likely allow the warrantless searches if a person’s life was in danger or if the phone evidence could be destroyed before a warrant was obtained. Such cases are rare, however.
Pope said he wanted to hear more about the legislation before deciding whether he would support it or not. However, he emphasized that officers can still get a warrant once a person has been arrested. “Law enforcement, they’re always going to (get around that) just because of the pure mechanics that you have to go through to deal with it,” Pope said.
Smith is working with a Democrat– Columbia Rep. Todd Rutherford– on the bill, “It’s not a Republican, Democrat, independent, or libertarian issue,” he said. “It’s more of a personal property rights issue.”