With the proliferation of cell phone or smart phone technology, the law has had a difficult time keeping up! Now, due to advancements in cell phone technology, both adults and children are walking around with “computers” in their hands at all times. They store all their contacts including names, addresses, and phone numbers in their cell phones. They store photos and videos in the cell phones. They store their music on their cell phones. They have a calendar on their cell phones. Many of their Google or other searches are contained on their cell phones. Therefore, a person’s cell phone is a treasure trove of information about any one individual. That is why law enforcement wants to see what is on your phone so badly when you are arrested for anything. However, you have rights when it comes to your cell phone and you need to know those rights.
Both the United States Supreme Court and the Tennessee Legislature have decided this issue. Tennessee Code Annotated § 40-6-110 Searches of cellular telephones and cellular telephone data became effective July 1, 2014. The statute states that “no law enforcement officer shall search, examine or duplicate any cellular telephone data, even if incident to a lawful arrest, unless: 1) the officer obtains a search warrant, 2) the owner gives informed consent, or 3) exigent circumstances exist at the time of the seizure requiring the officers to search the cellular telephone.”
Any evidence that is unlawfully obtained from your cell phone shall be excluded at trial as “fruit of the poisonous tree” meaning that it came from an illegal search and seizure. The statute specifically states, “no cellular telephone data that is obtained in violation of this section may be used in any court of law or administrative board as evidence, nor may other evidence that is derived from the illegally obtained data be used as evidence in any such proceeding.” Therefore, the police are prevented from using leads obtained from cell phone that was seized and examined illegally.
This statute does not apply to any cellular telephone that, at the time of its seizure or discovery, has been abandoned by the owner or person responsible for its abandonment. Therefore, you should not abandon your cell phone or the police can search it. So, for example, don’t pitch it out the car window or throw it down as you run away.
So, if you are arrested for anything and if the officer asks to search your phone, then you should politely but firmly deny consent to search your phone. Make the officers obtain a search warrant. If they don’t, then any evidence obtained will be excluded at trial, unless there are “exigent” circumstances. Exigent circumstances mean it is a situation that demands unusual or immediate action like in an emergency.