Can you Open The Phone?

2019-03-07T05:16:12-05:00

You are an on-duty Military Law Enforcement Officer (Service Irrelevant) You make contact with and apprehend a known trouble maker and drug user on post. He has no military affiliation. As you search him/her you find a Cell phone in their coat pocket?
Can you search phone for evidence? Yes or No (Justify your answer)

Response by SSG Robert Perrotto made Mar 7 at 2019 5:38 AM

2019-03-07T05:38:53-05:00

not as easy as a yes or no answer SSG, as federal and State laws come into play here. The general rule is you cannot search their electronic devices without a warrant unless the person gives permission, unless you can prove , beyond doubt, that the search is required to save a life in immediate threat. You are governed by federal law first, state law second, and it is usually a mixture of the two. being a trouble maker/drug use seems to me to not fall into the category of a life in immediate threat. Do it the right way and get a warrant. You will not be in the wrong if you get a warrant, but you could be open to having anything you find on that phone being inadmissible if you just search it because you arrested a person for what would be deemed a misdemeanor offense.

Response by SSgt Jim Gilmore made Mar 7 at 2019 5:39 AM

2019-03-07T05:39:22-05:00

You will need probable cause to search the phone. If the phone is locked, you will need a warrant to open it and phone manufacturers are reluctant (read adamantly against) assisting in opening a phone citing privacy as the software can be used to open other phones.

Response by SSG Jonathan Eric Reynolds made Mar 7 at 2019 5:54 AM

2019-03-07T05:54:18-05:00

No, there’s no military affiliation.

Response by MAJ Bryan Zeski made Mar 7 at 2019 2:21 PM

2019-03-07T14:21:54-05:00

Without permission, I think the answer is "no." 4th Amendment still applies - even on post. I think even if you get a warrant, you cannot compel a person to open their phone. With the warrant, you could take it and search it as far as your were capable, but you couldn't force the owner to unlock it.

Response by SGT Private RallyPoint Member made Mar 7 at 2019 6:54 PM

2019-03-07T18:54:36-05:00

It’s not a simple yes or no. It’s a definite, ‘maybe’. But generally, the rules for searching a phone without a warrant about the same as searching the pockets without a warrant.

The scenario is too vague to give a definitive yes/no.

Response by AB Private RallyPoint Member made May 26 at 2022 10:53 AM

2022-05-26T10:53:48-04:00

yes

Response by SFC Casey O'Mally made May 26 at 2022 12:26 PM

2022-05-26T12:26:10-04:00

Based on ONLY the information you have provided here, the answer is no. Because you had no cause for the arrest, any search subsequent to arrest is also invalid.

Merely being a "known troublemaker" does not provide probable cause, or even reasonable suspicion, without other clearly defined and articulable actions.