Often, when the police ask to search belongings you might feel pressure to say yes. After all, most people feel they don’t have anything to hide and assume that they will be incriminated or arrested if the fail to comply with an officer’s wishes. So if a police officer asks to search your cell phone, you need to know whether or not you can legally refuse. In general, even if a cop asks you outright, you are not obligated to actually show officers your phone or grant them access. Even arrestees are only required to have their cell phones searched if there is an emergency or the officers have a search warrant. However, officers may be able to gain access to your phone because:
Officers can search with your permission
Just like searching your car or house, police officers can legally search just about anywhere without a warrant if you give them permission to do so. If an officer asks if he or she can search your cell and you say “yes,” then don’t be surprised when he or she actually does so. While it seems simple, that simple verbal acknowledgement may mean you give up your rights to refuse a search of your phone.
Keep in mind that officers probably won’t tell you that you can simply say “no.” In fact, they may use threatening tones and make it seem as if denying them is in itself illegal. But while this may be scary, the police have no authority to forcibly make you show them your phone, unless there is an emergency which requires the phone (such as in potential threats against another person).
Your phone can still be taken, just not searched
A smartphone, or any phone really, is just a small piece of technology that serves as a storage reserve. The U.S. Supreme Court has determined that while police can take your phone (along with your wallet, keys, etc.) upon your arrest, they cannot actually look inside the phone or get any information from the device itself other than its physical specifications.So if your phone had residue of cocaine on it this could be seen as evidence that you had drugs in your possession. However, any texts you sent regarding the purchase of these drugs would be off limits until the police obtained a warrant. Failing to go through the proper channels to secure authorization violates your Fourth Amendment rights against warrantless search and seizure. Also keep in mind that this rule applies even if your phone does not have a passcode.
Officers can obtain a warrant
Once your cell phone is in police custody, investigators may apply for a search warrant to gain access to the data inside it. These search warrants must be approved by a judge and include a statement that police have probable cause to believe evidence of a crime is to be found on your phone. Unless there are unusual and outstanding circumstances, police will need to have a warrant to digitally crack into your phone.
As frightening as it may be, you do have a right to refuse when police ask to search your cell phone. If you feel your rights have been violated and your belongings searched without your consent, call our office today so we can get you the protection you need and make sure nothing is taken from you without your consent.