Our cell phones are more than simple devices--they house most of our personal information, conversations, and sometimes revealing data. Many people would be lost without their phones on a daily basis. So what happens if the police want your phone during an investigation? With a warrant, they can take your devices whether you’re willing or not, but you may be asked to provide your phone without a warrant. What to do in this scenario may not be clear-cut, and it is important to understand the consequences of each decision.
The Fourth Amendment to the U.S. Constitution is specifically aimed at the protection of civilians against government intrusion into personal space. This includes protection against “unreasonable searches and seizures” as it pertains to investigations and evidence, as well as setting out procedures for how warrants can be obtained.
In general, an officer must demonstrate probable cause for suspicion in order to obtain a warrant and perform a search or seize property. Certain things do not fall under the definition of a search, like if an officer sees or hears something that can be incriminating. But for most property and to tap a phone or obtain the data, a warrant is necessary.
However, because the Constitution was written well before the existence of cell phones, there has been an interpretation of the law necessary in more recent years. The general consensus has been that there is a lower expectation of privacy when it comes to cell phones because of the access that third parties have to our data. While warrants are still required to take a phone or tap a phone, there are modern concerns to take into account as officers move forward with investigations.
There are scenarios in which a warrant is not required to seize a phone. If imminent danger is suspected, such as a bomb threat or child abduction, they are able to take your phone as a part of your arrest. However, an officer taking legal possession of your phone opens other questions surrounding access.
Based on the Fifth Amendment, even if your phone is legally seized, you are not legally obligated to unlock the phone or provide your passcode and fingerprint to open the phone, as it can be considered self-incriminating. Officers may imply that you should do this or that it will work in your favor, but you should always speak to a lawyer before doing so.
Similarly, they may ask for your phone to be given willingly. You are welcome to do so, and some people feel that it shows innocence to be compliant in this way. However, this is not always true, and evidence can still be used against you in these cases. Items obtained illegally are not admissible in court, so it can be preferable to require a warrant or to force officers to access your phone outside of these rules.
If your phone is being taken with a warrant, it is important to be calm, know your rights, and not interfere with any valid procedures. You still have the right to refuse to answer questions or assist police, as well as refusing to unlock your phone and request an attorney.
Do I Get My Phone Back?
Any evidence seized is usually held until you are released or a trial ends. Whether your phone is taken or handed over willingly, it is possible it could be held for a long period of time. Not only can this have personal ramifications, but you should also consider whether you will be able to get another phone and access your data or if it will be expected that you do not interact with a phone moving forward.
If you are thinking of handing your phone over, you should discuss the possibility with your lawyer. They can advise you on whether willingly giving up your phone will help your case or hurt your case, including an honest discussion about what authorities may find on your phone. Remember that even if you do not give them your physical phone, they may be able to access records through your phone provider or other companies that capture information.
If you are facing charges or an investigation related to drug offenses, gun trafficking, or financial fraud, you need the white-collar criminal defense lawyers from Lowther Walker LLC to fight for you. If you’re facing charges related to health care fraud, it is imperative that you contact our health care fraud attorneys as quickly as possible to ensure the best outcome for your case.