We keep a lot of info on our phones—from credit cards and bank accounts to personal photographs. Combined with an assortment of logins, call and text logs, GPS, and tracking capabilities, our smartphones and online records can say quite a lot about us. And if that information should fall into the wrong hands, there is the potential that it could be used against us.
One part of the Miranda warning is that a suspect has the right to remain silent. But what about our technology? If we choose to remain silent, can our phones “speak” for us? Can the police force us to turn over our phones and online records in order to use them against us? And what about our carriers? Can they hand over records without our consent?
Can Police Make You Give Them Your Phone?
The short answer is no, police officers can’t just seize your phone. Because your phone is your property, they need a warrant in order to take it from you or to look at it or your other devices.
To get access to your phone records from your wireless carrier, they also need a warrant. This is in accordance with a Supreme Court ruling from 2018 (Carpenter vs. the US) that says it doesn’t matter that the digital records are held by a third party (the carrier) and that citizens still have a right to privacy when it comes to their digital records.
It’s important to note that there are situations where police can seize your phone or request your records without a warrant. If officers believe your phone may provide information regarding a child abduction, for example, or if they want your phone records because a bomb threat was called in, they do not need a warrant. Basically, if they have probable cause, they can take your phone. Also, if you are arrested, they can take your phone or other personal devices.
The Carpenter ruling doesn’t mean that law enforcement won’t ask to search your phone or won’t otherwise suggest that it is legal for them to seize your phone. It’s within their right to ask to look at your phone, but unless officers have a warrant, you do not need to consent to a search. Say no, and call your Tampa defense attorney.
And if they do have a warrant, always check what is covered. Rarely are officers given carte blanche. Make sure you understand what property the warrant covers and don’t provide them with anything else. Phone your Tampa defense attorney, who will help ensure your rights are being protected.
If your phone is searched or seized without a warrant, try to remember (or better yet, write down) the name of the officer and, if possible, their badge number.
Can Police Access Your Phone Records?
Your carrier maintains records based on your phone use. Such records have been used to show motive or to illustrate the whereabouts of a defendant. As mentioned above, police are required to serve a warrant on a carrier in order to get access to this information.
To get such a warrant, they must be able to show that the officers have probable cause to believe that an individual has committed a crime and that the phone records will help illustrate this.
Also, keep in mind that while officers can’t legally get into your phone without a warrant, they can use any information provided by others against you. For example, if you send an image to underage individual and that individual provides it to the police, the meta-information on that image and text can be used against you in a court of law.
Can You Be Compelled to Unlock Your Phone or Provide Your Password?
The police have your phone, now what? Can they make you give them the password or use your thumb to unlock your device?
Thankfully, the fifth amendment applies here. You cannot legally be forced or compelled to unlock your phone because it could be self-incriminating to do so. Even if they make it seem like you’d be helping yourself by unlocking your phone, it’s a good idea to refuse to do so until you speak with your lawyer.
However, just because you don’t unlock your phone doesn’t mean that law enforcement won’t be able to access the information on your device. In the digital age, police departments have gotten savvier, and at the federal level, the ability to break into password-protected phones continues to improve despite increased security measures from phone makers.
Federal Law Enforcement
So far in this post, I’ve dealt with policing at the state level. However, it’s important to note that federal law enforcement have a different set of rules they abide by. The main difference when it comes to phone records is that federal law enforcement do not need a warrant to gain access to your phone records. Plus, cell phone carriers don’t need to inform their customers if their records have been shared with federal agencies. If a carrier is complying with a subpoena, according to the Patriot Act, they don’t need to inform you.
Protect Yourself—Call Mike G Law
Our smartphones can feel like an extension of ourselves. It’s important to understand that while we can expect to have some sense of privacy on our personal devices, that privacy is limited. Unfortunately, this area of law is still being written and tested. Not every officer knows these laws or abides by them. It can be confusing, and they may think they have more authority than they do. To make sure that you’re protected, contact Mike G Law.
Mike G is committed to protecting the rights of the accused. Having spent decades as a prosecutor, he understands how law enforcement will push the limits in order to make a case. He also knows that this area of digital law is in flux and constantly changing. Mike G stays on top of the law to better help his clients. He understands the tactics used by law enforcement who are desperate to make a charge stick, and he knows how to fight back.
Protect your rights—call Mike G Law today to schedule a consultation.