What to Expect When You're Arrested (in San Antonio)
I'm a criminal defense attorney in San Antonio. When I was in my early 20s, I was arrested for DWI. I had no idea what to expect or what was going on with my case because my attorney didn't let me know what to expect. Now that I'm an attorney, I want to make sure that you don't have to go through the same experience that I did. This podcast will let you know what you can expect to happen at the different stages of your case. Even though it focuses on how cases in San Antonio are handled, it will be helpful even if you're charged somewhere else. If you've been arrested for DWI, assault, possession, or anything else, you probably have many questions about what will happen in your case. You'll probably have more questions while your case works through the system. This podcast will answer many of your questions.
If you have any questions about this or if you're being charged with a crime, feel free to call us at 210-405-6410 or click here to schedule a free consultation.
Click the link below to receive 5 Things You Should Do If You've Been Arrested: https://bit.ly/3tDOVbt
Your phone is basically your life in your pocket and that’s exactly why police want it after an arrest. The big question we tackle is simple but urgent: can they just open it up and start going through your texts, photos, emails, and apps? I walk through the general rule under the Fourth Amendment, why a phone is not treated like a wallet or a set of keys, and how the Supreme Court’s decision in Riley v. California changed the rules around cell phone searches.
We also dig into the exception that trips people up most: consent. If an officer asks to search your phone or asks you to unlock it, a quick “yes” can waive protections that might otherwise keep that data out of court. I explain what consent really means in practice, how to clearly refuse a consent search, and why I recommend making police get a proper search warrant instead of handing over access in the moment.
If police do get a warrant, we talk about what they typically have to show a judge, what a “phone dump” is, and the kinds of data it can pull, from call logs and messages to app data and location history. I also cover what not to do: don’t resist, don’t lie, and don’t try to erase or destroy evidence, since that can lead to serious new charges like tampering. Finally, we go over why you should ask to speak with a lawyer if you’re unsure, and how a San Antonio criminal defense attorney can challenge an illegal search or an overly broad warrant.
If you found this helpful, subscribe so you don’t miss the next one, share it with someone who needs it, and leave a review to help more people find the show. What’s the one thing you’d want to know before answering a police request to unlock your phone?
If you have any questions about this or if you're being charged with a crime, feel free to call us at 210-405-6410 or click here to schedule a free consultation.
Click the link below to receive 5 Things You Should Do If You've Been Arrested: https://bit.ly/3tDOVbt
If you have any questions about this or if you're being charged with a crime, feel free to call us at 210-405-6410 or click here to schedule a free consultation.
Click the link below to receive 4 Things You Should Do If You've Been Arrested: https://bit.ly/3tDOVbtAdvertisement
Hi, and welcome back to another episode of What to Expect When You've Been Arrested. This is your host, Sean Hendrickson, here from the Sean Hendrickson Law Firm, where we help good people like you avoid the devastating consequences of criminal charges. Today we're going to be talking about whether or not the police can just search your phone if you've been arrested. Before we get to that, we do have a free download for you. It's five things you should be doing right now if you've been arrested. You can click down in the show notes and we've got a link and we'll send that right out to you. We also have a link down in there. So if you've been charged with a crime in the San Antonio area, you can schedule a free consultation with us, and I'd be happy to discuss your case with you, let you know what you can expect, and let you know how we may be able to help you out and answer any questions that you may have. And you can use that link to schedule a consultation without even having to call us.
Imagine that you've just been arrested. The police take the phone out of your pocket. Can they open up your phone and just start going through your text messages, pictures, and everything else that you have on your phone? Generally, the answer is no. They normally need a warrant to search your phone and go through everything or consent from you to go through that phone. But it's not quite as simple as that. If you've been arrested, more than likely, when the police are taking all the property, taking everything out of your pockets, they're gonna take your phone from you. But that doesn't mean that they can just start going through your phone and just searching through everything that they want to. Now that most people have smartphones, our phones are more than just phones. They have all of our information on them. They are much more than just a telephone now, whereas they would have been just a telephone, you know, 20 or 30 years ago. And that's basically what the Supreme Court decided in a recent case, Riley versus California, where they made it clear that if the police want to search your phone, they're gonna need to get a search warrant just like they are going to need to get a search warrant to search almost anything else. The police can take your phone just like they're gonna take all of the other property that you have on you, but they're not able to search that phone at that time.
The biggest exception to the requirement that they get a warrant is if they get your consent. If you are being arrested and the police ask you if you can open your phone or if they ask if they can search your phone and you say yes, then you are generally giving them consent, which means that they are not required to get a warrant. You are waiving your constitutional right to make them get a warrant when you give them consent to search, which means that if you're in a position where the police are consenting to search your phone, I recommend not consenting to that search. Tell them that you are not consenting to a search and don't give them the passcode at that time. This is the same advice that I give in almost every other situation is that if an officer asks to search for something, tell them you do not consent to the search, make them get that warrant. Because if you do consent to a search, and if they do find something, there's not a lot that I can do at that point to keep that information out. If they do a search without getting a warrant, generally we're gonna be able to keep all of that information out of court, or if they try to get a warrant and they don't do it properly, then we can try and keep the information out in that situation also. But when you give consent, there's not a lot that we can do in most situations.
Now, what happens if the police are able to get a search warrant to search your phone? Generally, to get a warrant to search your phone, the police are gonna have to explain to a judge why they believe that there is evidence of a crime on your phone. They can't just search your phone just because they want to. They have to show that there is likely evidence of a crime currently on that phone. If they are able to convince a judge of that, the judge is gonna issue a warrant allowing them to search your phone, and they're gonna do what's called a phone dump, and that's going to essentially allow them to get everything off of your phone. That includes your call log, all of your text messages, emails, photos, the data from your apps, location information. They're gonna be able to see all of that in that phone dump. The warrant is gonna tell them what of that information they're actually able to look at and actually able to try and download off of your phone. The warrant may allow them to search everything on your phone. And if that's the case, we may have an argument against that because the search warrant has to be specific about what they're able to look for. Or the warrant may be specific about which parts of those things the police are able to search.
So, what should you do if the police do take your phone and do get a warrant to search your vehicle? First, I would say, you know, don't do anything to physically resist them taking your phone from you. Don't lie about your phone, don't destroy evidence, because that could be tampering with an evidence. There was a recent case that I just saw last week where somebody is being charged federally because they gave a code that instead of unlocking the phone, it actually destroyed all the information on their phone. So they're being charged with a felony because that could that's tampering with evidence. So don't do that.
But what I would say to do is instead of giving them your passcode right away, I would recommend asking to talk with a lawyer because this can be a complicated area depending on where you are, what agency it is, what the search warrant says. And instead of giving you a blanket answer about you should give them your code, you shouldn't give them your code. This is a situation where you want to talk with an attorney to get advice about your particular situation. If they are able to get into your phone and are able to get in that information, that doesn't mean that they can use all of that information against you in court. There are things that we can do to try and challenge things with this with any search. You know, was the search a legal search? Was it one that required a warrant? If it was, did they get a warrant? And did they follow the proper procedures when they got the warrant? Was that warrant properly signed off on? There are also some other issues that we can use where we may be able to keep some of that out of court. And of course, it's going to depend on whether that's relevant information related to whatever they're charging you with. Now, the types of cases that we do see phone dumps more often are usually higher-level cases. I don't see the police going after cell phone information on DWIs or misdemeanor assault cases. It's normally higher level cases like maybe armed robbery or, you know, any type of child sex case. You know, we see it more often in a situation like that than I do on misdemeanor cases. So
the takeaway from all of this is that the police can try and get the information off of your cell phone, but they can't normally do that without a warrant or unless they have your consent. And I recommend not giving your consent. If you're in a situation where the police are trying to get your phone and trying to get the data off your phone, don't do anything to prevent them from doing that, either physically or doing anything to erase the data off your phone, but also don't consent to it. In your situation, if you get to a point where you're not sure what to do, tell the police that you're demanding to speak with an attorney and don't give them an answer about that until you've had that opportunity to talk with an attorney to give you advice in your specific situation. I hope that this has been helpful for you. If you do have any questions or if you're being charged with a crime here in the San Antonio area, I definitely recommend setting up a free consultation with us. You can do that either by giving us a call at 210-405-6410 or by using that link down in the show notes. You can use that link and schedule that directly with us. And I'll be happy to answer any questions that you have and discuss your case with you and let you know how we may be able to help you out. I hope that you have a great day.
