We have developed a special relationship with our phones. While they are indispensable tools in our hands, they carry sensitive and personal information that is potentially dangerous in the hands of others. Due to the personal nature of our phones, police are typically not authorized to conduct a cell phone search without a warrant.
If the police ask to search your phone without a warrant, you have the right to say no. But how far does that right extend?
Police Can Search Your Phone During an Arrest
The right to decline a cell phone search does not necessarily apply during an arrest. The police, however, still do not have carte blanche access to go through your devices. They have set conditions they must follow for the search to be legal.
- The arrest must be lawful
- The search must be incidental to the arrest. It must occur promptly, at the time of the arrest and have a reasonable basis (relevant to the arrest) for searching your phone.
- Both the nature and extent of the search must be specific to the intent.
- They must take detailed notes of both what they examine and their search methods.
What Can’t Police Do While Searching Phone?
In most instances, when the police search your phone after an arrest they do not have a warrant. Without a warrant, what they can search is more limited.
The search needs to be specific, they cannot simply browse your phone, hoping to stumble upon something incriminating. For example, they may look at emails or texts from a time period relative to the suspected offence, particularly those sent to/from other suspects.
While they aren’t supposed to browse through your devices, any incriminating communications or images they do happen across may be used against you – even if they don’t pertain to the search reasons.
As well, police are not allowed to delete anything off of your phone or other devices. They can document, and ask questions about, anything they find in their search. But they cannot delete or otherwise tamper with it.
Do I Have to Give the Police My Phone Password?
You do not have to provide your password to the police, even during an arrest. This is protected under your right to remain silent during an arrest. Granted, failure to provide a password won’t stop police from attempting to access your phone or data. They are still allowed to try and get into your phone without it.
The police have sophisticated methods of getting into our devices, so not providing the password won’t stop them for long. Still, you will not face charges for not complying with a request for your password at this time.
If You Consent to a Search Phone
The police do not need a warrant if you have already consented to a search. Allowing other searches can unknowingly lead to granting police permission to search your devices.
For instance, if you consent to a search of your vehicle and your phone is inside, you have technically permitted them to search your phone as well. To avoid this, you can tell them explicitly that you are consenting to a search of the home (or car) but not of your phone.
During Border Crossings
If you’re going in or out of the country, you may be subjected to a search. Border agents are allowed to search any of your personal technology without a warrant. The border agents are bound by fewer restrictions in regards to their search than the police.
The justification for this is that there is an expectation of reduced privacy while crossing the border.
If accessing the information on your phone is, “required to prevent imminent bodily harm,” it may be possible for police to search without a warrant. After the fact, a criminal defence attorney may challenge the grounds of the justification for the search. This won’t stop police from searching your phone at the time, but it may prevent the evidence from being used against you.
Hire a Toronto Criminal Defence Lawyer
If you, or a loved one, are facing criminal charges, a criminal defence lawyer can help protect your rights and guide you through this difficult process. It’s important to understand your charges, your options, and the possible outcomes.
William Jaksa is a Toronto criminal lawyer experienced in challenging warrants, evidence, and protecting his clients’ interests in court and during litigation. Contact Jaksa today for a consultation.