The Fourth Amendment requires the police to have a warrant or your consent to search your phone.
People hold more information than ever thanks to the messages, apps, photos and videos stored on their phones. This often makes cell phones attractive to law enforcement when investigating a case.
A tweet with 20,000 likes warned people never to give their unlocked phone to the police, adding that phone passwords are constitutionally protected. This warning contradicts another, old viral tweet which claimed that the police could “look into your phone without a warrant” while you are being arrested.
Can the police ask you to unlock your phone without a search warrant?
No, the police cannot ask you to unlock your phone without a search warrant. But even when the police have a warrant, some courts have ruled that your cell phone password is protected by the Fifth Amendment and you can’t be coerced into sharing it.
WHAT WE FOUND
The Fourth Amendment to the US Constitution protects Americans from “unreasonable search and seizure” – meaning law enforcement must have a warrant or your consent to search your property with some exceptions.
The law firm of Thomas C. Thomasian, a New England law firm, says this protection extends to your phone, which means police can’t search your phone without a warrant or your permission. .
A search warrant is a document issued by a judge or magistrate that authorizes a police officer to search a specific location for evidence, even if the person who owns the item or location does not consent. To obtain a warrant, law enforcement must show that there is probable cause that a crime may have been committed or evidence that a crime exists at the location being searched. The warrant outlines exactly where and what law enforcement is authorized to search and seize.
But if an officer doesn’t have a search warrant, you can deny their request.
“If an officer asks you to unlock your phone or search your phone, you have the right to refuse,” says the Department of Public Defense Services in Maricopa County, where Phoenix, Arizona is located. “The officer, however, may be able to take the cellphone as evidence.”
Blogs from law firms based in Colorado and North Carolina explain that a police officer can seize your phone if you are arrested and keep it pending a search warrant. Although they are authorized to remove the battery or the casing of the phone, they cannot search the contents of the phone until they have a search warrant. Todd Coolidge, an attorney at the Coolidge Law Firm in Arizona, says you don’t have to share your phone’s passcode with the police if they take it as evidence.
There are only a few limited exceptions to the requirement that law enforcement obtain a warrant or authorization to search your phone. If the police reasonably believe that evidence on your phone may be destroyed before they can obtain a warrant, they may search it without your permission. They can also search your phone without a warrant or authorization in an urgent emergency – in Riley v. Californiathe Supreme Court case that established the warrant requirement for telephone searches, the Supreme Court used hypothetical situations where a bomb may soon explode or a child abduction as examples of such emergencies.
Outside of these exceptions, law enforcement must get a warrant to legally search your phone if you don’t give them permission. Even if the police get a warrant to search your phone, they may not be able to force you to unlock your phone depending on where you live.
A 2020 Congressional Research Service (CRS) report stated, “Courts have come to conflicting conclusions about whether and when forcible decryption of a device protected by a password or biometric identifier goes to against the Fifth Amendment. The Fifth Amendment to the US Constitution states that no American may be “compelled in a criminal case to testify against himself”.
The CRS report found that most courts that have ruled on the issue consider cellphone passcodes to be “testimonial,” and therefore under the protection of the Fifth Amendment. He also found that a few courts thought it extended to phones that unlock using biometrics, such as a fingerprint or face ID. However, it’s not universal in all US courts, and some courts say law enforcement can force you to unlock your phone if they have a warrant to search it.
In 2021, the Supreme Court had the opportunity to rule on the matter when Andrews vs. New Jersey State was appealed to the highest court in the land, but declined to take the case. Accordingly, there is no federal precedent for password protections.
Even if you don’t provide law enforcement with the passcode to unlock your phone, they still have a few ways to access some of the data on your device. The police can submit a request or request to a telephone company or manufacturer to obtain a person’s data.
Apple says it complies with “legally valid” requests, but requests that the company determines “have no valid legal basis or are deemed unclear, inappropriate or overbroad are disputed, disputed or rejected”. Apple can provide law enforcement with data stored on its servers, but only has access to data stored on some of their phones. According to Apple, it cannot extract data from a password-protected phone running iOS 8.0 or later, which covers all devices from iPhone 6. This is because the data on these phones is encrypted and Apple does not have the key to unlock the encryption.
AT&T says stored content, like text messages and voicemails, “usually” requires a warrant for AT&T to share the data with law enforcement. AT&T may choose to reject, challenge, or only partially comply with a legal request if the request contains errors or is not applicable to the data sought.
According to Upturn, a nonprofit organization focused on technology, equity, and justice, another way law enforcement can bypass your passcode to find your phone is to use the technology of data mining.
The Electronic Frontier Foundation (EFF), a digital civil liberties nonprofit, says you should demand to see the warrant if law enforcement claims to have one to search your phone. The EFF says you shouldn’t interfere with their search if the police try to search your phone without a warrant or your permission. Instead, you should “write down the officers’ names and badge numbers and call an attorney immediately.”
More CHECK: Yes, Overdraft Fees Cost Americans More Than Burglaries