The United States Constitution affords you numerous rights, including the Fourth Amendment right to be free from unreasonable search and seizures by law enforcement. This right extends to your person, house, and belongings, including your cell phone. Understandably, people want to know: Can police take your phone? In most cases, the answer is no.
If you believe your phone was illegally seized, and that led to an arrest related to criminal activity, you might have the right to fight it. To learn more, contact an experienced Nebraska criminal defense lawyer.
At Petersen Criminal Law, we receive a lot of questions regarding unlawful search and seizure. Can the police confiscate your phone? Can the police take your phone without a warrant? Here’s what you need to know about your rights when it comes to your cell phone.
When Are the Police Allowed to Take or Search Your Phone?
In most cases, the police need a valid search warrant to take your phone or search through it for information. This also applies to any information they hope to obtain from your cell phone provider. In 2018, the U.S. Supreme Court ruled that even digital records held by a third party are not accessible without a warrant in all circumstances.
Can the Police Make You Unlock Your Phone So They Can Search It?
If they already have possession of your phone, can police search your phone? Can they make you give them the password or use face recognition to unlock it? If you don’t open it, can the police take your phone for evidence?
You cannot be compelled or forced to unlock your phone for local law enforcement without a warrant. That is part of your Fifth Amendment right against self-incrimination. Even if unlocking your phone could help your case, you should not willingly do so without speaking with an attorney first.
Federal vs. State Law Enforcement
It’s important to point out that the rules differ at the federal level versus state level. Federal law enforcement can access your phone records without first getting a warrant in most cases. Your cell phone carrier is not required to let you know a federal agency has requested your records. For example, if the federal government serves a subpoena, the Patriot Act says your wireless carrier doesn’t have to let you know.
Exceptions to Needing a Warrant to Have Your Phone Searched
One exception to needing a warrant is consent. Police are allowed to search your phone contents with no warrant if you freely and voluntarily give your consent. Consent does not extend to threats or intimidation. If you agree to unlock it because the officer is yelling at you or threatening you, that does not constitute voluntary consent.
Another possible exception is exigent circumstances. Exigent circumstances are when there’s a true emergency that warrants a justifiable search. An example would be if the data on your phone could prevent someone from being physically harmed or it could help track a subject on the run.
What to Do If You Think Your Rights Were Violated
If you believe your rights were violated, you can challenge any evidence presented after an illegal phone search. A skilled Nebraska criminal defense lawyer can file a motion to suppress any illegally obtained evidence, which could result in the charges being reduced or even dismissed entirely.
Attorney Tom Petersen has over two decades of experience defending clients in criminal matters, including cases involving constitutional rights violations. Contact Petersen Law today to learn how we can help protect your rights and prepare the best defense possible.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
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