Can Evidence on My Cellphone Be Used Against Me?

Most smartphone users today use their phones for far more than just making calls. Instead, phones today are storage units that hold the most personal of data, from our credit card numbers and recent purchases to photos of our life to emails and text messages between our closest confidants and more. And as such, in the event of an arrest and criminal charges, evidence on cellphone has the potential to be incriminating. If you are stopped by police, arrested, or/and charged with a crime, here’s what you need to know about the rights of police officers to access data on your phone and use it against you–

When Police Can Search Electronic Devices

 Police officers do not have the authority to search your cellphone or other electronic devices, such as a computer, without a warrant unless:

  • You provide police officers with your consent; or
  • Police have probable cause to believe that the device contains incriminating information and they believe the device is at risk of being immediately destroyed.

In fact, even if you are arrested and are in police custody, police officers still cannot search the contents of your phone unless you give them permission to do so, or they have a warrant. They can, however, inspect the physical aspects of the phone. Keep in mind that if police come to your home and someone else within the home gives them permission to search the home and any of your personal devices, such as a shared computer within the home, this constitutes consent and therefore is legal for police to do.

One important thing to note is that even if the police have a warrant, if you are asked to enter a passcode or enter an encryption key for police to access your data, you do not have to consent. This is because of your Fifth Amendment right protecting you from self-incrimination.

Can Electronic Evidence Be Used Against Me?

In the event that electronic evidence is obtained legally (i.e. with a warrant or with your consent), then yes – it can absolutely be used against you in court to obtain a conviction. However, if you believe that evidence was obtained in a manner that was in violation of your constitutional rights, you should express this to your attorney. If evidence was illegally obtained, your lawyer can fight to have it withheld from court.

Call a Boston Attorney If You’ve Been Charged with a Crime

If police accuse you of committing a crime, ask to see your phone or computer, or actually arrest you and charge you with criminal activity, you should call an attorney immediately. An attorney can help you to understand your rights, and will work hard to protect those rights.

At The Law Offices of Paul R. Moraski, our Boston criminal defense lawyer is here to advocate for you. For your free consultation, please send us a message using the confidential intake form on our website, or call our law firm at (978) 397-0011.