Cellphones are essential for most people. We use our phones to keep us connected to the world around us, including our friends and family. It makes sense that police would want to have such an essential tool in their possession.
It begs the question of what can the police do in terms of a phone search? Do you have to turn over your phone or are there some protections against illegal searches?
A breakdown of phone protections
Phones are like any other property because they fall under the fourth amendment of the U.S. constitution where governments cannot conduct illegal or unreasonable searches and seizures. In addition to constitutional protections at the federal level, Californians are also protected by the state’s Electronic Communications Privacy Act, which went into effect in 2017.
The CalECPA prevents law enforcement from examining the contents of a person’s phone without first obtaining a warrant or consent from the owner, with limited exceptions allowed in emergency circumstances. If you are in police custody, and police have your phone, they are not allowed to take calls to the phone, or check texts, location data, call logs or any other information if you have declined their requests.
When Can Law Enforcement Legally Search Your Phone?
First, if a police officer asks you for consent to look through your cellphone and you say yes, then it is a legal search. Anything an officer finds during a legal search with consent could potentially be used against use in court as evidence.
If you refuse consent to search, the officer needs to get a warrant to search your phone.
In many cases law enforcement will seize your phone and then get a warrant to search through it. This will allow the officers to look at the device for anything that they feel is evidence of the crime they are investigating. You can take steps to protect yourself during this investigation though. Things that you can do include:
- Do not answer questions or provide additional information during the time of the search as all the information could be used against you.
- Ask to speak to a lawyer.
- Refuse consent to any search of your phone beyond the scope of the warrant.
- Refuse consent to search any part of your phone.
- Do not provide the password to unlock your phone.
You don’t have to feel powerless when it comes to phone searches. Just know your rights and how to approach the police when they attempt to search or confiscate your phone.