In most circumstances, New Mexico police cannot search your phone during a traffic stop without your consent or a warrant. There are specific legal protections in place, both under New Mexico law and the U.S. Constitution, that safeguard the privacy of your mobile device.
What the Law Says
New Mexico Statute on Phone Searches During Traffic Stops
- New Mexico law specifically addresses the use of cell phones while driving and the limits of police authority during a stop for such violations.
- If you are stopped for texting or using your phone while driving, the law states:”Unless otherwise provided by law, the handheld mobile communication device used in the violation of the provisions of this section is not subject to search by a law enforcement officer during a traffic stop made pursuant to the provisions of this section.”
This means that simply being stopped for texting or using your phone is not enough to justify a search of your phone by police.
Fourth Amendment and Supreme Court Precedent
- The Fourth Amendment protects against unreasonable searches and seizures. The U.S. Supreme Court, in Riley v. California (2014), ruled that police generally need a warrant to search the contents of your cell phone, even if you are arrested. This applies nationwide, including New Mexico.
- Police may not search your phone without your consent or a warrant, except in very limited circumstances such as certain emergencies (exigent circumstances).
Consent and Exceptions
- Consent: If you voluntarily allow police to search your phone, they do not need a warrant. You have the right to refuse consent.
- Probable Cause/Exigent Circumstances: If officers have probable cause to believe your phone contains evidence of a crime and there are exigent circumstances (such as imminent destruction of evidence), they may be able to search without a warrant, but this is rare and subject to strict legal scrutiny.
- Incident to Arrest: Even if you are arrested, police generally still need a warrant to search your phone’s contents.
What Should You Do If Asked to Hand Over Your Phone?
- You have the right to refuse consent. Politely state, “I do not consent to a search of my phone.”
- Do not unlock your phone for police unless they have a warrant. Under current law, police cannot force you to unlock your phone with a password, fingerprint, or facial recognition unless a court order specifically requires it.
- If police search your phone without a warrant or your consent, any evidence they obtain may be challenged in court and potentially excluded.
Key Takeaways
- Police in New Mexico cannot search your phone during a traffic stop simply because you were texting or using it while driving.
- A warrant or your voluntary consent is generally required for a phone search.
- You have the right to refuse consent to a search of your phone.
- If you believe your rights were violated, consult a qualified attorney immediately.
Unless you give consent or police have a warrant (or in rare emergency situations), New Mexico police cannot search your phone during a traffic stop-even if you were stopped for using your phone while driving.
Sources:
- https://www.harrisonhartlaw.com/your-rights-during-a-police-stop/
- https://law.justia.com/codes/new-mexico/chapter-66/article-7/part-4/section-66-7-374/
- https://www.dps.nm.gov/wp-content/uploads/2022/07/OPR.-42-R-6-Search-and-Seizure-043018.pdf
- https://www.genuslawgrp.com/library/can-police-search-your-car.cfm
- https://www.govtech.com/public-safety/can-police-search-your-phone-during-a-traffic-stop
- https://newmexicocriminallaw.com/stopped-police-can-make-get-car/
