You get arrested by the police, perhaps after a traffic stop. They confiscate your cellphone. You’re so used to having your phone all the time that this is very jarring and disconcerting.
But it is often legal for the police to take your phone, just as they will take your other possessions during an arrest. If you post bail or you get released, your possessions should be returned to you – including your phone.
There are some exceptions to this general rule, however. Items that are being held as potential evidence of a crime, for instance, may not be returned.
Can they look through it?
Even if the police confiscate your physical device, though, that doesn’t necessarily mean that they can look through it and gather any information or evidence. They may ask you for your consent to do so, but you can verbally deny this consent. Do not feel like you have to give them consent, even if they try to pressure you or tell you that things will “go better for you” if you just do it.
If you do not give your consent, then the police will be obligated to get a search warrant. They may not nearly have enough evidence to actually get a judge to sign off on that warrant, and it may not be an emergency situation. In fact, the police will sometimes attempt to get someone to give them consent specifically because they know they would never get the warrant needed to carry out the search anyway.
If the police do violate your rights and search your phone without your consent – or without a warrant – then it’s very important that you understand your legal options. This could significantly affect some of the evidence that they try to use in the case