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Cell Phone Searches in Minnesota

by | Aug 4, 2012 | Criminal Defense

Can Minnesota police search your cell phone without a warrant?

One of the basic Fourth Amendment principles is that, in general, the police can’t “unreasonably” search a person’s home or any other area in which a person has an expectation of privacy.  Those areas might include cars, a temporary residence, or even a telephone booth in one case!  This means that the first question we need to look at is whether you’re considered to have an expectation of privacy in a cell phone.

Having an “expectation of privacy” involves two things:  (1) that you, personally, have an expectation of privacy in the area being searched, and (2) that people in general would think it’s reasonable to have an expectation of privacy in that area.

The answer to question 1 depends on the exact circumstances of the situation, but if you don’t generally share the contents of your phone with other people and the contents require pushing one or more buttons on the phone to access, you probably would be considered to have an expectation of privacy in your phone’s contents.  This might change if, for example, you had a particular photo stored on your phone that you had previously shared with other people.  If the police searched your phone and viewed that photo, a court could potentially find that you didn’t have an expectation of privacy in the photo.  That means that if the photo contained evidence of illegal activity, the photo could be used as evidence against you in a criminal trial.

As far as question 2, Minnesota law holds (for now, anyway) that a cell phone is like a closed container and it’s reasonable for society as a whole to expect privacy in that container.  So, as long as you satisfy question 1, your phone is probably an area where you have a reasonable expectation of privacy.

If you do in fact have an expectation of privacy in your phone, the police generally need a warrant to be able to search it.  However, there are a number of exceptions to this requirement.  One of those exceptions is when the police see something illegal in plain view.  So, anything in plain view on your cell phone could still be searched without a warrant.  For example, if your phone is turned on and has no top that needs to be flipped open, whatever is visible on the phone’s screen could be viewed by the police without a warrant.  So, if you have a smart phone, think carefully about what you set as a background photo!

Kohlmeyer & Hagen Law Office
Mankato, Minnesota