When Can the Police Seize a Cell Phone Incident to Arrest, and How Long Can They Keep It?

Riley v. California, 573 U.S. 373 (2014), holds that the contents of a cell phone may not be searched incident to arrest, but allows for the possibility that the phone itself may be seized incident to arrest. This post addresses when such a seizure is permissible and how long it may last.

Search and seizure incident to arrest generally. When making an arrest, an officer may search items found “on the arrestee’s person” or “within his immediate control” in order to protect the officer from weapons or other sources of harm and to prevent the destruction of evidence. Chimel v. California, 395 U.S. 752 (1969).

Sometimes a search incident to arrest results in an officer seizing an item such as a weapon or evidence of a crime. To my surprise, existing case law does not clearly spell out the legal standard that must be met in order for an officer to seize an item that is uncovered during a search incident to arrest (beyond any temporary seizure necessary to carry out the search). At a minimum, if it is immediately apparent that the item is incriminating, it may be seized as evidence under the plain view doctrine. See Coolidge v. New Hampshire, 403 U.S. 443 (1971) (describing plain view as operating to “supplement the prior justification” for search, such as “search incident to lawful arrest” and allowing a “warrantless seizure . . . where it is immediately apparent to the police that they have evidence before them”). If plain view is the right framework, then there must be probable cause to support the seizure. See State v. Jackson, 293 N.C. App. 142 (2024) (equating “immediately apparent” with probable cause).

However, some cases suggest a looser standard. In State v. Bonds, 120 N.C. App. 546 (1995), the court indicated that an item may be seized if it is “potential evidence of a crime.” In State v. Roberts, 276 N.C. 98 (1970), the court stated that in the course of a search incident to arrest, “the officer may lawfully take from the person arrested any property which such person has about him and which is connected with the crime charged or which may be required as evidence thereof.” Some cases even seem to suggest a per se rule that police may seize anything on an arrestee’s person. See also Asinor v. District of Columbia, 111 F.4th 1249 (D.C. Cir. 2024) (stating that “it is blackletter law that, during an arrest, police may seize personal property held by the arrestee without a warrant”); Moats, infra (approving a phone’s seizure incident to arrest “without any level of suspicion”). I am skeptical of that idea and would not advise an officer to seize, for example, an arrestee’s priceless family heirloom that is obviously unconnected to any criminal activity.

The lack of clarity in the case law may be a function of the fact that many arrestees end up in jail, in which case all of their personal property is likely to be seized and inventoried in order to be placed in property storage. But some people may be arrested at home, where they could potentially leave their possessions. Or they may be arrested in the company of a friend or family member who could take custody of personal items. Or they may be arrested and immediately released by a magistrate, in which case there would be no need to seize and store the arrestee’s property in its entirety.

Search of cell phones incident to arrest. The leading case on the search of cell phones incident to arrest is Riley. The Riley Court actually considered two cases that were consolidated for argument. In one, the defendant was arrested for possession of a concealed gun after officers found two pistols hidden in his car. In the other, the defendant was arrested for drug distribution. Both arrestees’ phones were searched incident to their arrests. The Supreme Court ruled that although an arrestee’s personal property normally may be searched thoroughly incident to arrest, searching the contents of a cell phone incident to arrest violates the Fourth Amendment because “cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.”

Seizure of cell phones incident to arrest. Riley focused on the search of the arrestees’ phones, not their seizure. But the Court’s opinion could be read to suggest that an arrestee’s phone may routinely be seized incident to arrest: “Both Riley and Wurie concede that officers could have seized and secured their cell phones to prevent destruction of evidence while seeking a warrant. . . . That is a sensible concession.”  573 U.S. at 388.  The Court did not indicate whether that concession was sensible on the particular facts of the cases before it (where one defendant was suspected of drug activity, which may be facilitated by a cell phone, and the other was believe to be involved in a gang, which might involve electronic communications with other members) or whether it was sensible because police may, in every case, seize an arrestee’s cell phone. Given the amount of data stored on modern cell phones, one could argue that there will virtually always be at least some potential for an arrestee’s phone to contain evidence of a crime. And lower courts since Riley have mostly treated the Court as setting forth a categorical rule that an arrestee’s phone may be seized. See, e.g., United States v. Brixen, 908 F.3d 276 (7^th Cir. 2018) (stating that “there is no dispute that the seizure of the cell phone incident to Brixen’s arrest was lawful”); Commonwealth v. Barillas, 140 N.E.3d 911 (S.J.C. Mass. 2020) (stating that “it was permissible to seize the cell phone as part of a search incident to custodial arrest,” in part because any hard object could potentially be used as a weapon by an arrestee); Asinor, supra.

One limitation on the authority to seize an arrestee’s phone is that a phone is only subject to seizure if it is within the arrestee’s immediate control. The Fourth Circuit has recently decided several cases concerning when that standard is met. See United States v. Horsley,105 F.4th 193 (4^th Cir. 2024) (“We hold that the district court clearly erred in ruling that the cellphone was properly seized incident to arrest. Appellant was secured, and the cellphone was not within his reach. . . . Appellant was standing with his hands cuffed behind his back on the opposite side of the bed from the table where the phone was lying.”); United States v. Davis, 94 F.4th 310 (4^th Cir. 2024) (“[T]he record does not establish that Davis’s phone was on his person or in an area within his immediate control. . . . Absent such evidence, we cannot find that Davis’s cell phone was lawfully seized incident to his arrest.”).

Duration of the seizure of a phone. If a phone has been seized properly, questions may arise regarding how long that seizure may last. At a minimum, a phone may be seized long enough for the arresting officer to examine it for any threats to the officer’s physical safety. The Riley opinion states that “officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon—say, to determine whether there is a razor blade hidden between the phone and its case.” 573 U.S. at 387.

When there is probable cause to believe that the phone contains evidence of criminal activity, the officer may retain it while seeking a search warrant. This follows from Riley, where the Court memorably wrote, “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.” And it is consistent with background principles about law enforcement’s ability to preserve evidence and maintain the status quo while seeking a warrant. See, e.g., Segura v. United States, 468 U.S. 796 (1984) (officers who arrest a dwelling’s occupants may secure the premises to preserve the status quo while seeking a search warrant). An officer who seizes a phone in order to obtain a search warrant must apply for the warrant within a reasonable time. Cf. United States v. Pratt, 915 F.3d 266 (4^th Cir. 2019) (31-day delay in seeking search warrant for seized phone was unreasonable and violated Fourth Amendment); United States v. Smith, 967 F.3d 198 (2d Cir. 2020) (similar). And if the application is successful, a defendant may be entitled to get his or her phone back after the search is completed, if there is no contraband on the device. See Lindell v. United States, 82 F.4th 614 (8^th Cir. 2023) (stating that “[t]he government’s continued retention of the phone and all its data raises constitutional issues distinct from the lawfulness of the search warrant or its execution,” and remanding to the district court for a determination of “whether the government can reasonably justify its continued refusal to return [the defendant’s] cell phone, which at this point was seized nearly a year ago, or the data on it which is entirely unrelated to the offenses the government is investigating”).

If the officer does not have, and does not quickly develop, probable cause to support a search warrant, the phone appears to be nothing more than non-incriminating personal property that should be returned to its owner as soon as possible – typically, upon the owner’s release from custody. The Asinor case cited above is illustrative. It was a civil suit against the District of Columbia. The plaintiffs had been arrested, most in connection with various protests. Their phones had been seized. They were released without charges, but their phones were not returned for months or years. The court held that “any continued retention of such personal property—even after release of the arrested individuals—must . . . be reasonable” to satisfy the Fourth Amendment. Generally, once continued seizure of an item serves “no legitimate investigatory or protective purpose,” continued seizure is not reasonable and the item should be returned to its owner. Put simply, the police must either fish or cut bait: apply for a warrant, or give back the phone.

None of this is firmly settled. An influential out-of-state case seems to seems to suggest a different rule, allowing a suspicionless seizure to continue at least for several days. In Moats v. State, 168 A.3d 952 (Md. Ct. App. 2017), the court ruled that “[t]he police were entitled to seize—and retain—Petitioner’s cell phone incident to [his] arrest, without any level of suspicion at the time of the seizure that the cell phone contained evidence of the crime. Under the auspices of that warrantless seizure, the police were authorized to retain the cell phone until three days later when they obtained a warrant to search it, notwithstanding Petitioner’s release from custody in the interim.”

I tend to read Moats in light of its facts. Officers were investigating allegations of drug distribution and sexual assault, and were working towards – and soon obtained – a search warrant for the defendant’s phone. I am skeptical that the court would countenance an extended suspicionless seizure of a phone that belongs to, for example, a person arrested for DWI. But until we have more cases in this area, it is hard to predict with confidence. The safe harbor for officers seems to be to seize a phone as evidence only with probable cause, and then to move promptly to obtain a search warrant for the phone’s contents. Zealous defense counsel may seek the return of seized devices under G.S. 15-11.1 and the Fourth Amendment, and may argue that any delay in obtaining a search warrant implicates constitutional concerns.

I’ve turned on comments for this post in the hopes of hearing from folks about their practices and experiences with phone seizures. If you’d rather contact me directly than post a comment, that’s fine too, of course.