Does Law Enforcement Need a Warrant to Search Your Cellphone?
Warrant requirements and civil rights violations with mobile devicesBy Lindsay Kramer | Last updated on January 12, 2023
Use these links to jump to different sections:search warrant. You might face pressure from an officer and they might even lie in an attempt to obtain your consent to a search. No matter what the officer does, do not allow them to look through your phone if they don’t have a search warrant—even if there is nothing suspicious or incriminating on the phone. You have the right to privacy and that includes the privacy of your cellphone, laptop or tablet.
Unreasonable Search and SeizureThe Fourth Amendment to the United States Constitution states that unreasonable searches and seizures of citizens’ property are illegal. This means that, in most cases, law enforcement needs to have a warrant to conduct a search. However, there are exceptions to this requirement. One of these exceptions is the presence of exigent circumstances, which means that an officer must act quickly because of a dangerous condition present, such as being in pursuit of an individual fleeing them or the danger of the evidence being destroyed. When exigent circumstances exist, an officer must have probable cause to search a phone or other piece of property without a warrant. Another is the phone owner’s consent to a police search. If an officer asks an individual if he or she may search the person’s phone and the individual grants permission, the officer may search the phone and use anything they find contained within, including text messages, to aid in an investigation. Even if a law enforcement officer does obtain a warrant for a cell phone search, can he or she access its contents if it’s password-protected? Chad Van Brunt, a criminal defense attorney in San Antonio, was defending a client in a weapons smuggling case in Del Rio, Texas. “Homeland Security investigators wanted to get into the cellphone of my client to gather extra information,” he says. The warrant was approved to search the cell phone data, and the judge ultimately ordered the client to give the password. “The issue becomes: They’ve got the warrant, but they don’t know the passcode,” Van Brunt adds, noting there is no Supreme Court ruling on whether or not clients can be compelled to hand over their passwords. “We’re at the crossroads, and the courts are split.” Van Brunt also states that passwords—at least in a court setting—offer better protection than Apple’s Touch ID. “Your Touch ID, virtually, has no protection,” he says. “You’re not as protected as you would be with a password this time.”
Phone Privacy RightsYou have the right to privacy. If a police officer violates this right, they have broken the law and may not be able to use the information obtained from the phone during the illegal search. If your phone was searched illegally, any evidence taken from the phone may be deemed void. Contact a law office and seek legal advice from a civil rights or criminal defense lawyer about the validity of the evidence the prosecution is attempting to use against you and how you can demonstrate that the evidence was obtained illegally. For more information on this area of law, see our civil rights overview.
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