When police officers make an arrest, they often seize the suspect’s personal belongings as evidence. This frequently includes their cell phone. Modern smartphones contain a wealth of private information and police can access much of it without a warrant. However, there are still limitations on what information police can obtain from a seized phone.
Can police search your phone without a warrant?
In general, police need a warrant to thoroughly search the contents of a seized phone. The Supreme Court has ruled that cell phones are protected by the 4th Amendment against unreasonable searches and seizures. Police cannot simply browse through your entire phone looking for evidence without a specific warrant.
However, police can conduct a limited on-site search of a seized phone without a warrant under the following circumstances:
- To look for weapons if they have reason to believe the phone itself could be used as a weapon against them
- To prevent the destruction of evidence if there is reason to believe evidence may be destroyed remotely
- To search for information relevant to the reason for a lawful arrest, but only areas where that information is likely to be found
For example, if they arrest someone for drug dealing, they may be able to briefly search recent calls and messages for evidence of drug transactions. But they still cannot browse arbitrarily through the entire contents of the phone.
What can police access without unlocking your phone?
Even without being able to unlock a seized phone, police can still access some information including:
- Phone number – This can be obtained from the SIM card.
- Phone hardware information – Such as serial numbers and manufacturing details.
- SD card data – If there is an SD card inserted, they can access any unencrypted data.
They can also use the phone’s external buttons and touchscreen to view anything visible when the phone is locked. This includes notifications, banner information, widgets showing basic data like date/time, and accessing the camera app.
Can police force you to give them your passcode?
Police cannot compel a suspect to give up their phone passcode in most circumstances. The act of entering your passcode is considered “testimony” under the 5th Amendment, so it is protected against self-incrimination. Refusing to provide a passcode cannot legally be used as grounds for holding someone in contempt of court.
However, police may attempt to find legal loopholes to force password disclosure such as arguing that the passcode has been “forgotten” rather than “refused”. Suspects should be cautious about how they decline to provide a passcode.
What information can police access with a warrant?
With a proper search warrant, police can search through the entire contents of a seized phone including:
- Text messages
- Chat app messages and media
- Emails
- Voicemails
- Call logs
- Contacts lists
- Web browsing history
- Calendar, notes, task lists
- Downloaded apps and their data
- Media files like photos, videos, and audio recordings
- Location data
The warrant has to have reasonable specificity about what information police have probable cause to search for. But if that standard is met, no content on the phone is necessarily off limits.
Can police attempt to crack or hack into a seized phone?
With a warrant, police can use hacking tools to attempt to gain access to a locked, encrypted phone. However, they cannot compel a suspect to actively assist in bypassing their own phone’s security measures. There are also limitations on when they can employ a third-party hacker to break into the phone.
What happens if police search a phone illegally?
If police search a seized phone without a proper warrant or exceed the lawful scope of a warrant, any evidence found may be ruled inadmissible in court under the exclusionary rule. However, police do have some exceptions allowing warrantless searches under “exigent circumstances”.
If you believe police illegally searched your phone, your defense attorney can file a motion to suppress the evidence from the search. If granted, the prosecution cannot use that evidence against you.
Can police keep your phone for months or years?
Police can keep a seized phone in evidence “as long as reasonably necessary” for investigation purposes. Reasonableness varies based on the specifics of each case. Higher value cases like homicides tend to dictate longer retention periods.
However, defendants have the right to petition the court for the return of their property once it is no longer needed as criminal evidence. This helps prevent indefinite withholding of seized devices after investigations conclude.
Can police search your phone without you knowing?
It is possible for police to covertly access some data from a seized phone using hacking tools without the owner’s knowledge. However, evidence found this way would likely be inadmissible in court if found to be an unreasonable search done without a warrant.
Police can also attempt to obtain private data from your phone company and popular apps using legal court orders and subpoenas. But they need specific justification to do so.
Do police need a warrant to search your location data?
Police generally need a warrant to access your real-time cell phone location data or historical location records from your phone company. However, some lower courts have found limited location data available without this requirement in cases involving national security issues or imminent threats.
Can employers or schools search your phone?
Employers and schools have more leeway than law enforcement to search phones, laptops, and other devices owned by the organization. However, there are still limitations about invading personal privacy. Any such searches should be restricted to information relevant to employee conduct or other legitimate issues.
Searches done without reasonable, articulable suspicion of wrongdoing can leave the organization vulnerable to lawsuits. Bottom line – organizations still need solid justification for intrusive device searches.
What should you do if police have your phone?
If police take possession of your phone, remain calm and polite, but clearly state you do not consent to any search. Do not attempt to physically reclaim your phone. Make sure officers document the phone’s condition and contents. Politely ask when you can expect the phone returned. But avoid answering questions or entering passcodes.
Contact a criminal defense lawyer as soon as possible if charged with a crime related to evidence on the phone. Follow their advice about how to lawfully gain return of your device and suppress any illegally obtained evidence.
Conclusion
Modern cell phones contain a wealth of private information that police can potentially access, with or without a warrant. However, courts have set limitations on how deeply police can search a seized phone without violating 4th and 5th Amendment rights.
While police do have some latitude to search phones without a warrant under exigent circumstances, a detailed search still generally requires demonstrating probable cause and getting a specific search warrant from a judge. Evidence found in illegal searches can potentially be suppressed.
Anyone whose phone is taken by police should politely refuse consent to search, speak with counsel, and take steps to protect their rights against unreasonable searches. While police have tools to unlock and access phone data, the law prevents wholesale invasive searches without due process.