The Fourth Amendment in the Relation to the Police Search Phone or Computer Drive
Can the Police Search My Phone or Computer Drive? Unreasonable police searches and seizures are illegal in the United States thanks to the Fourth Amendment of the U.S. Constitution. This protection also includes the data on your computer and portable devices. So in the real world, when can police search your digitally stored files?
If the police search your computer or hard drive without your consent, a proper warrant, or a legal reason such as “probable cause”, then your criminal defense attorney can have the evidence thrown out by filing a motion to suppress evidence (Penal Code 1538.5).
When Can They Search Computers and Portable Drives?
The police can search the personal data on your computer:
- When they have a valid search warrant. The warrant should include details of exactly what they are searching for;
- When you or whoever has authority of the specific computer or device gives consent to do so;
- When you are carrying the device across an international border (including airports);
- When they have “probable cause”, like they personally view something illegal on the device while you are using it in public;
- When an “emergency” justifies a warrantless search. For instance, the search will prevent someone’s death or injury.
This applies to Computer Hard Drives, Tablet Drives, and any External Drive (Flash Drives, SD Cards).
In the case of cloud storage, in general the police can only search if the physical location of the cloud servers are in the USA, where they have jurisdiction.
When Can the Police Search My Phone or Computer Drive?
In most cases, California police need a valid search warrant to search the data on your cell phone, unless you consent to a search.
Therefore, it is advised to not give the police permission to search your cell phone. You are well within your rights to politely refuse if asked. However, they may seize it if you are under arrest and keep it until they obtain a warrant.
The same laws for computer devices above apply to cell phones, however the police may also search your phone:
- If it will prevent the imminent destruction of evidence;
- To pursue a fleeing suspect.
The Police have a Warrant, What You Need to Know and Do
Ask to see the warrant.
A warrant is a document signed by a judge giving the police permission to either arrest you or search your property and take certain items from that property. You have the right to see the warrant and should check to make sure it is valid.
The police must bring the original warrant with them when executing it, and give you a copy. They must also knock and announce their entry before they try to forcefully enter your home, and must serve the warrant during the day in most cases.
A warrant should contain:
- The correct name of the person arrested or the correct address of the specific place to be searched;
- A list of the items that can be seized or taken by the police;
- The judge’s signature;
- A deadline for when the arrest or search must take place.
If the police see (smell or hear) something illegal, they can take it.
While the police are in your home or office searching or seizing property, if they observe something in “plain view” that is suspicious or illegal, they may take it for further examination. For example, if police see an open laptop with child pornography on the screen, they could seize that laptop.
You do not have to answer any questions during a search or seizure.
You do not have to talk to the police. In fact, it’s best to simply say “I don’t want to talk to you. I do NOT consent to a search. I want to call my attorney.”
The police will likely take your devices and search it somewhere else.
As long as they have search warrant signed by a judge, they can seize the devices listed in the warrant and take it somewhere else to search through the files. They may also clone the media or other files stored on the drive.
The police can search your device even if you are not subject of the investigation.
Legally it doesn’t matter whether the police are investigating you, or have reason to believe that your device has evidence regarding a crime allegedly committed by another person (like your business partner or wife), if they have any of the legal reasons mentioned in the first section of this article, they can search your devices.
You do not have to hand over your encryption keys or passwords.
The Fifth Amendment protects you from being forced to give the government your passwords or encryption keys as it’s considered “testimony.” A police officer can’t threaten or fore you to give up a password or key to unlock your personal data.
More Details About Searches
Police can search your devices at the border, even without a warrant.
The Fourth Amendment protection does not apply at the border like it does in your home. This means that the police or border patrol can inspect your computer or phone, even if they have no reason to suspect anything illegal! An international airport, even if far away from the geographical border, is considered the functional equivalent of a border.
There is less protection against a search at your workplace.
Generally, you have some Fourth Amendment protection in your office or workspace, but the extent of Fourth Amendment protection depends on the physical details of your workplace, as well as company policies. If you share a computer with other employees, you will have weaker privacy. For instance, if your boss or co-worker consents to a police search in your absence, your work devices and data can be seized and searched.
You may be able to get your computer back if it is taken and searched.
If your computer was illegally taken, then you can file a motion with the court to have it returned. They may attempt to keep the computer permanently, known as forfeiture, but you can challenge forfeiture in court.
We’re Here to Help
Are you under police investigation or have had your property seized in the greater Los Angeles area? We cannot stress enough the importance of consulting and retaining a lawyer to protect your rights, privacy and future.
Need a Criminal Defense Attorney? CALL NOW: 310-274-6529
Seppi Esfandi is an Expert Criminal Defense Attorney who has over 20 years of practice defending a variety of criminal cases.