Warrantless search of cellphone and/or its contents.

If you’ve been lawfully arrested, and you are in possession of a cellphone at the time of arrest, may the arresting officer legally search, without a warrant (ie., a warrantless search), your;

1. Cellphone; and/or

2. The contents of your cellphone including pictures, email, videos, and any and all data stored in your cellphone?

As a general rule, the Constitution requires that a search and consequent seizure must be carried out with a judicial warrant; otherwise, it becomes unreasonable and any evidence obtained therefrom shall be inadmissible for any purpose in any proceeding. (Art. 3, Sec. 2 and 3, Constitution)

While the Rules of Court provides that a “person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant” (Rule 126, Sec. 13, Criminal Procedure), a cellphone is not normally a dangerous weapon unless you used it or clearly intend to use it as such.

But even as a dangerous weapon, its contents or data is a separate issue which may not be searched without a judicial warrant.

Even if used to commit an offense, still its contents or data may not be searched without a judicial warrant.

Thus, while it may be legally possible to conduct warrantless search of a cellphone, the legality of searching without a judicial warrant the contents or data of a cellphone is another thing.

“Cell phones and other similar handheld communication devices in common use have the capacity to store vast amounts of highly sensitive personal, private and confidential information – all manner of private voice, text and e-mail communications, detailed personal contact lists, agendas, diaries and personal photographs. An open-ended power to search without a warrant all the stored data in any cell phone found in the possession of any arrested person clearly raises the spectre of a serious and significant invasion of the . . . protected privacy interests of arrested persons. If the police have reasonable grounds to believe that the search of a cell phone seized upon arrest would yield evidence of the offence, the prudent course is for them to obtain a warrant authorizing the search.” (Justice Sharpe, in R v. Manley, 2011 ONCA 128, an Ontario caselaw)

If a search warrant has been issued on the contents, but you secured your cellphone with a password, the arresting/searching officer, even the Supreme Court, cannot (or should not) compel you to unlock your cellphone (Art. 3, Sec. 17, Philippine Constitution).

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