In New Mexico, both the U.S. and state constitutions protect you from unreasonable searches and seizures, including the search of your phone during a traffic stop. Police generally cannot search your phone without a warrant, unless a specific exception applies.
When Can Police Search Your Phone?
| Circumstance | Can Police Search Your Phone? |
|---|---|
| With your voluntary consent | Yes |
| With a valid search warrant | Yes |
| Without consent or a warrant | No, except for rare exceptions |
Key Points:
- Consent: If you give police permission, they can search your phone. You have the right to refuse consent, and your refusal cannot be used against you.
- Search Warrant: Without your consent, police must have a search warrant, supported by probable cause and signed by a judge, to search your phone.
- Probable Cause & Exigent Circumstances: In rare cases, police may be able to search without a warrant if there are “exigent circumstances”—such as an immediate threat of evidence being destroyed, or a risk to public safety. However, New Mexico courts have a strong preference for warrants and often require one even in situations where federal law might allow a warrantless search.
What About After Arrest?
Even if you are arrested during a traffic stop, police still need a warrant to search the contents of your phone. The U.S. Supreme Court (Riley v. California, 2014) and New Mexico law both require a warrant to access digital data on your device, except in the most urgent situations.
Your Rights During a Traffic Stop
- You have the right to refuse a search of your phone.
- You do not have to provide your phone’s password or unlock it unless ordered by a court.
- If police ask to search your phone, clearly state: “I do not consent to a search.”
New Mexico police cannot search your phone during a traffic stop without your consent or a search warrant, except in rare emergency situations. The state’s legal protections are strong, and courts generally require a warrant for phone searches, even after arrest. Always exercise your right to refuse consent if you do not want your phone searched.
Sources
[1] https://www.dps.nm.gov/wp-content/uploads/2022/07/OPR.-42-R-6-Search-and-Seizure-043018.pdf
[2] https://lawfirmnm.com/blog/2018/12/probable-cause-and-warrantless-searches/
[3] https://www.harrisonhartlaw.com/your-rights-during-a-police-stop/
[4] https://www.nmag.gov/wp-content/uploads/2021/11/nm-oag-search-seizure-manual.pdf
[5] https://coa.nmcourts.gov/wp-content/uploads/sites/43/2024/01/May-22-2019-State-of-New-Mexico-v.-Mauricio-Bylon-Escobedo-No.-A-1-CA-34258.pdf
