Police Can Search Your Phone in Minnesota
What the law says in regard to cellphones and your privacy rightsBy Benjy Schirm, J.D. | Reviewed by Canaan Suitt, J.D. | Last updated on April 21, 2023
Use these links to jump to different sections:
- Police Searches of Your Phone Under the Fourth Amendment
- The Fifth Amendment’s Guarantee Against Self-Incrimination
- Get a Criminal Defense Lawyer’s Help in Protecting Your Data
Phones play a crucial role in most people’s lives. They have become an integral part of the way we locate and get to places, deal with emergency situations, and interact with society. Many of us hold private information on these devices, and if they fall into the wrong hands, that could be catastrophic.
Police Searches of Your Phone Under the Fourth Amendment
The Fourth Amendment prevents police officers from unreasonable searches and seizures of personal property without a search warrant. But if a police officer wants to search your cellphone, they can do it in two ways.
- They can ask for your permission to search the phone, which you should not give without first consulting with a lawyer. Even if you have nothing to hide, there is no reason to hand your phone over to an officer until they have a warrant.
- The police department, wants to gain access to your phone. A warrant will often be given, since phones can be readily destroyed and the courts have an interest in preserving evidence if there is probable cause and reasonable belief a crime has been committed.
Even with a warrant requirement, though, your password may keep them out.
For example, a man named Diamond was arrested and charged with burglary and concealing stolen property. As part of the case against him, the police compelled Diamond to unlock his cellphone using the fingerprint ID feature of his phone. They found evidence of a crime in texts on the phone that were used at trial and he was found guilty. On appeal of the criminal case, his defense lawyer challenged the testimonial nature of fingerprints.
The Fifth Amendment’s Guarantee Against Self-Incrimination
The Fifth Amendment guarantees that you have the right to not incriminate yourself in a crime. Taking this a step further, the courts have ruled that this privilege only protects people from being incriminated by their own testimonial communications about criminal activity.
To determine whether something is a testimonial communication, “the communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” The problem with asserting that your fingerprint is testimonial is that it is considered by both the courts and law enforcement as physical evidence— just like blood samples, handwriting or clothing.
Many of the current cellphones allow for fingerprint or facial recognition to open your phone. If your phone is opened and in plain view, that allows anyone who has access to that phone to use any of the data in the phone as well. In Diamond’s case, and in many others, that could incriminate them with pictures, phone calls, maps data, texts and more.
With the current state of the law, it is apparent from this case and others that your fingerprint password and facial recognition to get into your phone may prevent a stranger from getting in, but it certainly won’t keep law enforcement officers out. It is recommended that that you disable these features on your phone to protect your personal data and your freedoms.
Get a Criminal Defense Lawyer’s Help in Protecting Your Data
If you have been arrested with your phone on you, there is little chance of keeping the information locked in it secret from the authorities, but to give yourself the best chance you will want to contact a reputable and experienced criminal defense attorney for legal advice.
For more information on this area of law, see our overviews of criminal defense, DUI/DWIs, and traffic stops.
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