Does Law Enforcement Need a Warrant To Search Your Cellphone?

Phones play a crucial role in most people’s lives, as many of us hold private information on these devices. It stores personal data, your digital wallet, social media messages, and the names and contact information of friends and family.

If law enforcement officers do an unlawful search of your phone, the information obtained may be inadmissible in court due to the exclusionary rule. Civil rights and privacy laws can vary by state. For legal advice about cell phone searches by the police, talk to a local criminal defense attorney.

Police Searches of Your Phone Under the Fourth Amendment

The Fourth Amendment prevents police officers from conducting unreasonable searches and seizures of personal property without a search warrant. If a police officer wants to search your cellphone, they can do it in two ways:

1. 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 valid search warrant.
2. The police department wants to access your phone, and judges grant search warrants since phones can be readily destroyed, and the courts have an interest in preserving evidence if there is probable cause and a reasonable belief that a crime has been committed.

An exception to the warrant requirement is the presence of exigent circumstances. Exigent circumstances mean that an officer must act quickly because of a dangerous condition, such as being in pursuit of an individual fleeing, or to ensure public safety. In exigent circumstances, an officer must have probable cause to search a phone without a warrant.

Another exception is the phone owner’s consent to a police search. If an officer asks an individual if they may search the person’s phone and the individual grants permission, the officer may search the phone. The officer can then use anything they find contained within, including call logs and text messages, to aid in an investigation.

Even if a law enforcement officer does obtain a warrant for a cell phone search, can they 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.”

Find top Criminal Defense lawyers easily

Connect with a qualified attorney today.

Find a lawyer today

The Fifth Amendment’s Guarantee Against Self-Incrimination

The Fifth Amendment guarantees that you have the right not to incriminate yourself in a crime. 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 both the courts and law enforcement consider it as physical evidence, just like blood samples, handwriting, or clothing.

Many of the current cellphones allow fingerprint or facial recognition to open your phone. If your phone is open and in plain view, officers may see the data, but accessing it further typically requires a warrant or an applicable exception.

Van Brunt also states that passwords, at least in a court setting, offer better protection than biometrics. “Your Touch ID, virtually, has no protection,” he says. “You’re not as protected as you would be with a password this time.”

State Laws for Privacy Protections

Some states have additional digital privacy laws that protect individuals against warrantless searches of electronic devices. California’s legislature enacted the Electronic Communications Privacy Act to protect sensitive information in electronic communications.

Under the CalECPA, law enforcement officers cannot access information on an electronic device (either via the service provider or the device itself) unless they meet one of the following conditions:

• They have a search warrant based on probable cause or a court order
• A wiretap order
• Consent from the possessor of the device
• Consent of the actual owner of the device if the owner reports the device stolen
• There’s an emergency that requires immediate action to prevent death or serious bodily injury
• The device is abandoned — though in this situation, the officer may only access the device to identify or contact its owner

If an officer accesses information in any other way or for any other reason, prosecutors cannot use the information obtained.

Get a Criminal Defense Lawyer’s Help in Protecting Your Data

If you were arrested with your phone on you, officers may seize it, but accessing its contents generally requires a warrant or an applicable exception. To give yourself the best chance, contact an experienced criminal defense attorney for legal advice.