As we head further into the digital age, more and more of our important and personal information is stored on our electronic devices. The growth of information technology has given rise to a new privacy issue: can police officers and other government officials access our personal computers, phones, and other digital devices?
Under the Fourth Amendment, you are protected from unreasonable search and seizure.
Just as police usually need a warrant to search your property or person, they generally are required to have a warrant to search your electronic devices, with some exceptions. Below, we’ve listed several examples of situations where police officers may lawfully search your computer, phone, or other device.
- If you give consent. Police officers can search your electronic devices if you give them permission. For this reason, you should never consent if the police ask you if they may search your belongings.
- If there is probable cause of incriminating evidence. If the police have reasonable belief that there is important evidence of a crime—such as a white collar crime or drug crime—on a phone, computer, or other device that is likely to be immediately destroyed, officers may be able to search it without having to obtain a warrant first.
- If another member of your household gives consent. If you share a computer or other device with someone in your household, they may be able to give officers permission to search that device—unless you have already explicitly declined a search.
- At the border or an international airport. Officers can search your electronic devices at US borders or international airports, even if they do not have probable cause to believe the devices hold incriminating evidence.
- If the police have a warrant. A warrant grants police officers permission to search and seize certain property. In order to obtain a warrant, police officers must show they have probable cause to believe that criminal activity is occurring in the place to be searched, or that incriminating evidence may be discovered there. Police officers may search your computer, phone, or other electronic device if the warrant grants permission to do so. In addition, if the warrant gives permission to search for evidence of a certain crime, and the police have reasonable belief that such evidence may be contained in your electronic device, they may be able to search your device lawfully.
What to Do if the Police Try to Search Your Electronic Device
Should a law officer ever request to search your phone, computer, or other electronic device, it’s important to understand and stand up for your rights by following these steps:
- Ask if they have a warrant. If the police officers have a warrant to search your electronic device, you have the right to see it and examine its validity. Officers should give you a copy of the warrant, which should contain your name, a list of items they can search, the deadline for when the search must finish, and the signature of a judge. If the police cannot furnish such a document, you do not have to consent to a search.
- Invoke your right to remain silent. The police may ask you questions before or while they are conducting a search. Invoke your right to remain silent, and say nothing beyond politely declining to answer questions before speaking with an attorney.
- Do not supply passwords. Under the Fifth Amendment, you are protected from having to supply police officers with self-incriminating evidence. For this reason, an officer cannot lawfully make you tell them the passwords of your computer, phone, or other electronic device. However, police officers can take your computer to another location in order to unlock and search it if they have a warrant.
- Do not physically interfere with the search. Although you are not required to supply passwords or help police officers as they search your devices, you should not physically interfere with the search. Do not try to stop them by using force or destroying evidence, even if you believe their search is unlawful. Instead, write down their names and badge numbers and explain your situation to a lawyer.
- Consult with an attorney as soon as possible. It’s crucial that you do not speak with the police officers before consulting with an attorney. After a search, you should get in touch with an experienced Colorado defense lawyer as soon as possible. The laws surrounding electronic information privacy are complex and constantly changing, and an attorney can help you understand such laws to determine whether your rights have been violated. If your attorney can demonstrate the police officers have searched your electronic device illegally, any evidence uncovered in this search may be deemed invalid.