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Cell Phone Search Warrant?

OPB | May 3, 2011 9:06 a.m. | Updated: Sept. 10, 2013 10:04 p.m.

Does law enforcement need a warrant to search your cell phone data if you’re arrested? That question comes before the Oregon Supreme Court this week.

James Nix was arrested in Albany four years ago. He had several outstanding warrants and was suspected of using his phone to deal drugs. When Nix was arrested, his phone was seized and forensic analyists examined the data it contained. They believed the photos and text messages they found were drug-related. Nix’s lawyer contested the use of this evidence against his client and the case has worked its way up through the courts.

The Oregon Supreme Court will not be the first to hear a case like this. In 2009, the Ohio Supreme Court said police officers needed to get a search warrant before looking through an arrestee’s cell phone data because a cell phone is akin to a “closed container” and the same rules should apply. But earlier this year, the Supreme Court in California went the other way, ruling that someone loses privacy rights to certain items they are carrying with them when they’re arrested.

In Michigan, police are asking motorists to surrender their cell phone data during routine traffic stops, using a device that can capture all the information on almost any phone model in about 90 seconds.

The U.S. Supreme Court has yet to take up a case addressing the Fourth Amendment as it applies to cell phone data, but the federal government recently asked the high court to examine the issue of tracking a suspect with a GPS device, prior to arrest.

Have you ever been arrested? What happened to your cell phone? Do you ever think about how the information contained in your phone could incriminate you?

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