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Can Police Search My Smartphone?

Police in various areas of Norther Kentucky and Cincinnati have begun checking the phones of automobile and truck drivers. KRS 189.292 is a current law that makes it illegal to text, email or use the internet while driving. New proposed regulations would have car manufacturers imbed devices in new vehicles that would not allow the use of smartphones while the car is in drive. Lawmakers in some states have overlooked the fact that the majority of the people using smartphones are not the driver of the vehicle, but passengers. (Kentucky has not enacted such a requirement). If you are questioned, stopped, arrested or the subject of a criminal investigation in Northern Kentucky, you do not have to give permission to the officer to search your phone. Like any other search, it is legal if the person consents to the search. If the officer asks for permission, simply say NO. If permission is granted, they can certainly search. If you deny permission, the officer may seize the phone if he believes that there is illegal activity; then he must obtain a search warrant to view the contents of your Droid, iPhone or Blackberry. Police have begun to realize the amount of evidence which may be obtained from a smartphone or PDA. A search warrant can only be obtained if there is reason to believe that there is incriminating evidence on the phone. Because a Droid, iPhone or Blackberry are actually small computers, the courts generally require that a search warrant be obtained prior to searching. If the police or other investigating agency searches without permission or a search warrant, there is a likelihood that any evidence recovered may be suppressed since it is a violation of civil rights against improper searches; see the Fifth Amendment to the US Constitution. Simply because they are handheld does not give the owner any less of a right to privacy than if it was a desktop computer. While the initial intent may be to prove that a person was texting while driving, the information obtained from smartphones or PDAs has led to arrest and convictions of child pornography as well as provided strong evidence in drug trafficking cases. They have also been used when investigating a traffic accident to see if you were talking or texting during the accident. Know your rights. If you have questions or were charged, call Mike Bouldin at 859-581-6453 or mike@bouldinlawfirm.com.

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