There’s no denying that cell phones have become ubiquitous in American society. The vast majority of Americans have one, and they contain a great deal of information about their owners within them.
By looking through the standard cell phone, a person can learn who the owner knows, what they say in private conversations, what their family looks like, what kind of games they enjoy, and many other personal bits of information.
In 2014, the recognition that so much information about a person can be learned by looking through a cell phone lead the U.S. Supreme Court to require police officers to obtain a search warrant before conducting a search of someone’s phone. In Riley v. California, the U.S. Supreme Court recognized that “Modern cell phones are not just another technological convenience. With all they contain and they may reveal, they hold for many Americans ‘the privacies of life.’” Id. at 2494-2495.
“You’ll need a warrant for that…”
It is not unlawful for police to search a person after they have been arrested—a scenario that may turn up additional evidence. For instance, police might search a pocket and find a cigarette package that contains hidden drugs. The package, since it was on that person, is subject to closer inspection by law enforcement, and the drugs may be collected as evidence.
In their landmark ruling, the Supreme Court found that searching a phone is not at all like searching a pack of cigarettes. In fact, they found that searching a phone is more analogous to searching someone’s home—a situation that (with few exceptions) requires a warrant.
So while police may seize your phone after you’ve been arrested—and even investigate its physical components—the Supreme Court holds that they’ll need permission from a judge (a search warrant) to search its digital contents.
Exercise your rights.
But the police have a clever way to circumvent a warrant altogether: getting your permission. Yes, if you give expressed consent, a police officer can search your phone’s contents and use what they find as evidence against you.
You should never give a police officer permission to search your phone—denying them access is not an admission of guilt, but an expression of your right to privacy. If you are being asked to give your permission to have your phone searched, state explicitly: “I do not give my consent,” and, “I do not want to speak without my lawyer present.”
You are also not obligated to give law enforcement your password or encryption key, even if the police obtain a search warrant. Nor are you obligated to answer any questions or assist them in their search. However, keep in mind that you may not interfere with the search or attempt to destroy any potential evidence.
If the police do have a warrant to search your phone, they are required to show it to you. You have the right to read through the document and check its validity. If a warrant is found to be invalid, evidence collected during the search may be suppressed in court with the help of a defense attorney.