When you use a cell phone to correspond with another person, to browse the internet or to shop online, it might store a certain amount of data. The internet creates and archives a history. You might also use services outside your phone to store data, such as iCloud. Perhaps, you use a pass code to protect privacy and keep people from being able to access the contents of your cell phone. What if a New York police officer wants you to hand over your phone?
Maybe police suspect you of a crime or think you have filmed someone or something that may be evidence of criminal activity. It’s critical that you know your rights and how to protect them, especially if law enforcement officers want to search your cell phone.
Access may be possible without physical possession of a phone
It might not even be necessary that you physically hand over your cell phone for police to gain access to its contents. This is because a lot of information connected to your phone might be in external storage. Also, if you use social media, police can contact the host sites to access things like direct messages you have exchanged with people.
Do they need a warrant?
This is a complex question that doesn’t have a single, definite answer. In most cases, a police officer would need some type of subpoena, a warrant or other valid court order to gain possession of your cell phone, or access information or data created by your use of the phone.
There are certain circumstances, however, where law enforcement officers may be able to access information without your permission or even without a warrant. Perhaps, you exchanged messages with another person. If police ask that person to show them those messages and he or she complies, it’s basically out of your hands.
The Amendments that protect you
The Fourth Amendment of the U.S. Constitution protects you from unlawful search and seizure. The Fifth Amendment protects you from self-incrimination. The latter enables you to invoke silence, meaning you don’t have to speak if you think doing so might incriminate you. Many Civil Rights advocates believe the Fifth Amendment would protect you from having to divulge the pass code to your phone if a police officer asks for it.
The issue is complex, however, because the government might already know the information you do not want to talk about, in which case whether it would be self-incriminating is highly debatable since the information was already known. There are also apps that help break pass codes, which police might use to gain access to a cell phone if you do not say the code aloud.
Protect your rights
There have been cases in numerous state supreme courts regarding defendants’ rights and whether or not police acted lawfully in requesting or accessing cell phone information. New York laws may be different than laws in another state. This is why it’s important to seek clarification ahead of time, so you clearly understand your rights in a given set of circumstances.