Inquisitive police officers regularly ask suspects questions like “Can I take a look at your phone?” or “Can I see your phone?” These on-the-street requests may give rise to legal questions in court. For example, if the suspect hands over the phone in response, does that provide consent for the officer to search the phone? And if so, what is the scope of the search that the officer may conduct? This post explores those issues. Is silently handing over the phone consent? If a suspect says “sure, you can search” or signs a consent to search form, it is obvious that he or she has consented to the officer searching the phone. But if the suspect silently hands the phone to the officer, is that consent, mere acquiescence, or something else? The Fifth Circuit held that it was consent in United States v. Escamilla, 852 F.3d 474 (5th Cir. 2017). That case involved an officer asking a suspect “Do you mind if I look through your phone?” and the suspect silently giving the device to the officer. The Fifth Circuit ruled that the suspect consented to search based on his actions, which were “more than mere silence or failure to object.” See also Lemons v. State, 298 S.W.3d 658 (Tex. Ct. App. 2009) (an officer asked to see a suspect’s phone and the suspect’s “response of simply handing his cellular telephone” to the officer gave the suspect’s “unbridled consent” to the officer’s search of the device). The phone in Escamilla was [...]
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