The general rule is that police need a warrant to search your cellphone. Cellphones contain vast amounts of personal information, which makes privacy interests especially important. Unlike a person’s purse or coat pockets, a cellphone can access every aspect of a person’s life from day-to-day activities to bank accounts, health records, and more. The U.S. Supreme Court recognized these unique privacy interests in the case of Riley v. California, 573 U.S. 373 (2014).
However, while a warrant will usually be required, there are exceptions to every rule. This article will review when police need a warrant to search your phone and when they don't. We'll also cover related concerns pertaining to the privacy of your call logs, text messages, and passwords.
Do Police Need a Warrant to Search My Phone?
Yes, usually. Police can search your property only if:
- they have a warrant from a judge, or
- an exception to the warrant requirement exists.
One common exception to the warrant requirement involves a search incident to an arrest. When an officer arrests or takes someone into custody, this exception allows officers to conduct a warrantless search for weapons and evidence of a crime within an arrestee’s immediate control in order to protect the officer, preserve evidence, and prevent the arrestee’s escape. For instance, police can search purses, coat pockets, and wallets. Police often invoked the search-incident-to-arrest exception to conduct warrantless searches of cellphones. But the U.S. Supreme Court struck down this practice in 2014.
Police Typically Need a Warrant to Search Cellphone Data
In 2014, the U.S. Supreme Court determined in Riley v. California that the search-incident-to-arrest exception does not apply to cellphone data. The Supreme Court held that the government’s interests in protecting officers and preserving evidence during an arrest aren’t present when it comes to cellphone data.
Unlike searching a purse or coat pockets for a weapon, digital data doesn’t present a risk of harm to an officer. While arguably preserving evidence presents a greater concern—given the ability to remote wipe or encrypt cellphone data—the Court noted that officers could have secured the phone with rather simple measures. Police can disconnect the phone from a network, turn off the phone, take out the battery, or place the phone in a secure bag that prevents radio waves from accessing the phone. The Court also pointed out that getting a warrant can be done over the phone in minutes if necessary.
Other Warrant Exceptions Still Apply
The Court emphasized that its decision in Riley didn’t impact other exceptions to the warrant requirement. An officer doesn’t need a warrant if a person consents to the search, for instance. Police are also authorized to conduct a warrantless search when an emergency exists. For example, the police could have searched the phone data in an emergency to find an abducted child or the location of a bomb had those been the circumstances.
When Can Police Search Your Call Log or Text Messages?
The same rules apply to your call log and text messages. Police will usually need a search warrant. They need to provide a judge with information establishing probable cause that the device will contain evidence of the crime, such as calls made in planning or committing the crime, text messages sent to others involved in the crime, or pictures and videos that show the crime. But again, exceptions exist.
Lock Screen Notifications Are Not Private
Say you hand over your phone during a traffic stop and a text notification shows up on your lock screen. If the officer did nothing to manipulate the phone, courts have held no search has been conducted. You gave up any expectation of privacy by allowing notifications to appear for anyone to see. The officer doesn’t need a warrant or exception to use the information that readily appeared, assuming they have the phone legitimately in their possession.
This rule also applies if police have your phone number or social media account name and they call or send you a message using their phone. This situation might occur if police are attempting to identify someone as the owner of the phone—say a sting operation to track down someone soliciting sex from a minor. If the officer calls or messages your phone and their information shows up on the lock screen, the fact the notification appeared in plain sight makes it fair game. Fourth Amendment protections don’t apply. (U.S. v. Brixen, 908 F.3d 276 (7th Cir. 2018).)
Consent and Court Orders
In many cases, the police simply ask for consent to search a phone’s contents and people readily give it—even though they don’t need to. The police can search the call logs, text messages, and other data that are not password protected.
Now let’s say you don’t give consent. Police still have options that don't involve getting a warrant. They can ask the receiver of your messages to turn over their phone, which gives them access to your reply messages. As another option, police may be able to get a court order (requiring less than the probable cause needed for a warrant) to have a third-party turn over information that it stores (such as Google).
Can Police Make Someone Unlock a Phone?
The law here is less clear. Courts are divided on whether requiring a person to unlock their phone (called “compelled decryption”) violates a person’s Fifth Amendment privilege against self-incrimination. Until the Supreme Court takes up the issue, the law remains in flux. If police ask you to provide your password or biometric data to unlock your phone, you may want to tell the officer that you’d like to speak to an attorney before providing the information. The attorney can let you know what the laws in your jurisdiction require.
How Long Can Police Keep a Phone for Evidence?
Law enforcement can generally seize your phone and hold onto it as long as it’s needed for a criminal investigation or proceeding. If you’re arrested and facing charges, it could be a while before you get your phone back. Police can’t hold onto it without a valid reason, though. You can typically file a motion in court to seek the return of your property. Learn more about Getting Property Back From Police.
Talk to an Attorney
If you have questions regarding a police search of your cellphone, contact a criminal defense lawyer to review your rights and options. If you need general information on protecting your communications, check out Electronic Frontier Foundation's guides on Surveillance Self-Defense.