Cell phones contain vast amounts of personal information, and the law treats them differently from other objects or containers in your car. Here’s a comprehensive look at your rights and what Wisconsin law says about police searching your phone during a traffic stop.
Your Rights Under the Fourth Amendment
- The Fourth Amendment to the U.S. Constitution protects you from unreasonable searches and seizures by the government.
- In most cases, police need a search warrant to look through your phone, just as they would to search your home or computer.
- The warrant must specify what data the police are allowed to search and must be supported by probable cause—a reasonable belief that your phone contains evidence of a crime.
When Can Police Search Your Phone Without a Warrant?
There are only a few exceptions to the warrant requirement:
- Consent: If you voluntarily allow the police to search your phone, they do not need a warrant. You have the right to refuse this request, and it’s generally in your best interest to do so.
- Search Incident to Arrest: Even if you are arrested, police generally cannot search your phone without a warrant. The U.S. Supreme Court has ruled (in Riley v. California) that searching a phone is not the same as searching your pockets or car.
- Exigent Circumstances: In rare cases, if police believe there is an immediate threat to public safety or that evidence will be destroyed before a warrant can be obtained, they may search your phone without a warrant. However, this is a high bar and must be justified in court.
- Plain View: If evidence is visible on your phone’s screen without any search (for example, if your phone is unlocked and displaying incriminating information), police may be able to use that information.
What Happens If Police Take Your Phone?
- Police can seize your phone if they have probable cause to believe it contains evidence of a crime, even without a warrant.
- However, seizing your phone is not the same as searching it. They generally cannot access its contents without a warrant or your consent.
- You are not required to provide your passcode or unlock your phone for police, even if they have seized it.
Traffic Stops: What to Expect
During a routine traffic stop in Wisconsin:
- Police cannot search your phone without your consent or a warrant in most cases.
- They may ask for your consent to search your phone. You have the right to decline.
- If you are arrested during the stop, police still need a warrant to search your phone, unless a rare exception applies.
- Any evidence obtained from an illegal search (without a warrant or valid exception) may be inadmissible in court.
Exceptions: When Police Might Search Without a Warrant
- Emergencies: If police believe someone is in immediate danger or evidence will be destroyed, they may conduct a search without a warrant. These situations are rare and must be justified.
- Consent: If you hand over your phone and allow a search, you waive your Fourth Amendment protections for that search.
Key Takeaways for Wisconsin Drivers
- You do not have to consent to a phone search during a traffic stop.
- Police need a warrant to search your phone in almost all circumstances.
- If police ask for your phone or to unlock it, politely decline unless they show you a valid search warrant.
- You are not required to give your passcode or unlock your phone.
- If your phone is seized, police still need a warrant to search its contents.
What Should You Do if Asked to Surrender Your Phone?
- Politely but firmly state that you do not consent to a search.
- Ask if you are free to leave.
- If police persist, ask to see a search warrant.
- If arrested, do not unlock your phone or provide your passcode.
- Contact a criminal defense attorney as soon as possible if your phone is searched or seized.
Wisconsin law, backed by U.S. Supreme Court precedent, is clear: police generally cannot search your phone during a traffic stop without a warrant or your explicit consent. Knowing your rights and calmly asserting them is your best protection against unlawful searches.
Sources:
- https://www.wisbar.org/NewsPublications/InsideTrack/Pages/Article.aspx?Volume=2&Issue=4&ArticleID=5758
- https://coolidgelawfirmaz.com/can-the-police-search-through-my-phone/
- https://www.lawofficesofchristymhall.com/blog/2019/05/you-have-rights-even-during-a-wisconsin-traffic-stop/
- https://www.stangllaw.com/blog/legality-owi-traffic-stops-searches-wisconsin
- https://www.eauclairecriminaldefense.com/can-the-police-search-my-phone-without-a-warrant
