Police encounters can be terrifying if you or the officers with whom you interact don’t know your rights, and more often than not one of the two don’t. For example, you have the right to record a police officer during routine business in a public space. Sometimes an officer will still request or order you to stop recording. They might not know you have such a right (believe it or not), or maybe they just don’t care. Both of you have options during any such interaction, but what happens when the police take your phone as evidence afterward?
First, we need to answer the question: when can police take your phone? Our phones hold what is potentially the most sensitive information about our lives. Pictures, subscriptions, email, social media, files and folders, and notes and messages: it’s all there. First and foremost, police can confiscate and search your phone if they have a warrant to do so, which means that law enforcement believes the phone could hold information relevant to a crime that has been or will be committed.
Second, the police have the same right if you give them verbal or written consent to search the phone. There is no circumstance in which you should waive your right to keep your own belongings protected, so don’t give consent. If you’re unavailable to provide consent, then a spouse or roommate can do it for you. It might get a little awkward if you let the people in your life know that, hey, they shouldn’t give police access to your personal belongings if there ever comes a time they request to do so–but you should.
Third, if you cross the border your devices can be seized and searched without consent and without a warrant.
Fourth, if you’re arrested your rights diminish. The police can search you and everything on your person. They cannot search the digital contents of your phone.
Once your phone is taken by the police, it can be a huge burden to get it back. Things to know: you don’t have to give police your passwords. The police may return your phone after a time, or they may attempt to hold onto the phone through forfeiture, which you can and should challenge in court.
If your phone is seized either legally or illegally, you should enlist the help of a qualified lawyer in order to get it back. The faster you do this, the faster the phone will be returned to you.