As phones have become more sophisticated and essential devices, they have been increasingly used in criminal proceedings. Phones often provide law enforcement with vital evidence about a suspect’s involvement in a crime, which naturally makes them interested in what’s stored on the device. But the question often arises: under what circumstances can police search your phone?
Knowing the rules that pertain to phone searches, as well as your rights and how to exercise them, can help you avoid potentially serious legal consequences. If you have questions about law enforcement officers’ search and seizure of your phones or other digital devices, turn to the Fairfax County criminal defense firm of Surovell Isaacs & Levy PLC.
Legal Standards For Police Cell Phone Searches
Generally speaking, a law enforcement officer cannot simply demand access to your phone without a good reason, whether at a traffic stop, arrest, or otherwise. Under the Fourth Amendment, police must usually have a warrant to seize and search the data on a cell phone. A court won’t issue a warrant unless law enforcement can produce evidence of probable cause.
Probable cause means that there is a reasonable basis for believing that law enforcement will find evidence of a crime in the place or thing being searched. Probable cause is a very fact-specific matter. Your Fairfax County defense attorney can review the circumstances of the police search in your case to see if the appropriate criteria have been met.
However, law enforcement may be able to legally seize a cell phone and hold onto it while the issuance of a warrant is pending. This means a warrantless seizure of the phone could be justified under the circumstances. There are also situations in which police can both seize and search the cell phone’s data without a warrant, for instance if the phone’s owner consents or there is an immediate threat to public safety.
Protecting Your Legal Rights
Our goal at Surovell Isaacs & Levy PLC is to protect your rights and work for the best possible outcome in your criminal defense case. To that end, we recommend the following:
- Do not consent to a search: You should never voluntarily consent to law enforcement searching your cell phone, regardless of any assurances they may make with respect to your rights or alleged involvement in a crime.
- Politely decline a request: If a police officer asks to search your phone, politely decline and never give anyone your password or passcode.
- Ask to see a warrant: If the officer persists, ask to see a warrant; if the officer presents you with one, review it carefully but do not voluntarily consent to a search.
- Exercise your right to remain silent and to legal counsel: In all cases, you should exercise your constitutional right to remain silent, not answer questions or volunteer information, and speak with a Fairfax County criminal defense attorney.
Some judges have determined that forcing the phone’s owner to enter their passcode is a form of coerced testimony, which is against the Fifth Amendment. But the police may be able to force you to use facial recognition or fingerprints to unlock your phone, since these are non-testimonial acts. Having your phone so that only a fingerprint or facial recognition can open it may leave you vulnerable, so have a passcode/password or pattern lock as well.
What If I Refuse to Comply?
Police may seize your phone without your permission or compliance and use forensic tools to crack the code and access the data. Nonetheless, you can later ask the court to suppress any evidence that officers obtain in violation of your rights. Regardless of the actions of law enforcement officers in your case, speak with a Fairfax County criminal defense lawyer immediately.
Our Firm is Here to Defend You
As cell phone technology evolves, so too does the legal landscape surrounding it. Our firm stays apprised of the latest court developments with phone searches and then puts them to work to defend the rights and interests of our clients. If a law enforcement officer has taken your phone or placed you under arrest, contact Surovell Isaacs & Levy PLC for assistance.
Posted in: Criminal Law