What Can Cops Look At On Your Phone Without A Warrant?

Ten years ago, most of us had little more on our mobile phones than other phone numbers. Then cames texts, photos, video, web pages, passwords, credit card info, and most importantly Sudoku scores. But how much of that should be readily available to police if you are believed to have run afoul of the law?

That was the question before the Seventh Circuit Court of Appeals recently, where lawyers for a man convicted on a drug-related charge argued that police had conducted an unlawful search when they looked through his cellphones (one on his person and two others in his truck) to check the phone number of each particular device.

The court disagreed, saying that merely checking the number of a phone found on a suspect is no different from searching a container that person might be carrying. The judge likened what the police did is the same as merely checking the inside cover of a diary to confirm the owner’s name or address, without looking at any interior pages.

“[W]hat happened in this case was similar but even less intrusive, since a cell phone’s phone number can be found without searching the phone’s contents, unless the phone is password protected–and on some cell phones even if it is,” wrote the judge.

He pointed out that it only took two button pushes for the officers in this case to locate the iPhone’s number and a single button push to do the same on the man’s Blackberry. The officers then used these phone numbers to subpoena call records from the wireless carriers.

So it appears that if you don’t want police looking at anything on your phone without a warrant, your best recourse is to make sure you use password protection, especially since a U.S. Circuit Court recently ruled that authorities could not compel someone to decrypt a file on his computer, saying it violated one’s Fifth Amendment rights.

Court Ruling Opens Phones To Warrantless Searches [Forbes.com via Slashgear.com]

Thanks to Harper for the tip!

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  1. Maltboy wanders aimlessly through the Uncanny Valley says:

    What can cops look at on your phone? After they introduce you to their slapjack, any damn thing they want.

  2. Cat says:

    a U.S. Circuit Court recently ruled that authorities could not compel someone to decrypt a file on his computer, saying it violated one’s Fifth Amendment rights.

    Well that’s a good thing, at least.

    • bosozoku says:

      They still ended up figuring out how to decrypt it…bummer.

      • StarKillerX says:

        Yeah, after all we can’t let criminals be held responsible for their actions!

        I don’t disappove of of the court ruling cited by Cat above, but either way I wont feel bad for this woman getting locked up if she’s proven guilty.

        • huadpe says:

          In general, defending rights means defending the rights of some unsavory characters. Ernesto Miranda was a drunkard and a bum, but Miranda v. Arizona was a watershed for the 5th amendment.

      • keith4298 says:

        you’d rather a guy be able to get away with kiddie porn?

        • pythonspam says:

          I hate to repeat, but WARRANT. There is a lawful way to search. It requires going to a judge with probable cause.

      • mikedt says:

        no, they didn’t figure out how to decrypt it, her ex-husband (also charged) gave them the password – probably in exchange for a lesser sentence.

    • Snoofin says:

      What are you hiding? IF you arent downloading music or movies illegally, browsing illegal porn or doing anything else illegal, why not let them look

      • Alys Brangwin says:

        Why do you not care about your rights? Just because you don’t want to cooperate with the police, who aren’t always doing everything above board in the first place, doesn’t mean you have something to hide. The burden is on the police to prove you are engaged in criminal activity, not on you to prove your own innocence!

        • Snoofin says:

          How are the police going to prove anything if they cant search for evidence

          • jeb says:

            They get a warrant, which has to be vetted (at least in theory). That also limits what they can and cannot search for.

          • Jack Doe says:

            They have the evidence in their custody. It’s not the job of the accused to make sure they can read it. It would be akin to turning over personal files written in your own shorthand. The warrant tells you to surrender the documents. It’s not your job to tell the police what they say.

          • bluline says:

            One word: Warrant.

      • 5seconds says:

        Can i come over to your house and have a look around? Open some drawers, look in your medicine cabinet? C’mon, if you have nothing to hide, there isn’t a problem, right?

        • Maltboy wanders aimlessly through the Uncanny Valley says:

          No problem. Just don’t look in that drawer in the nightsta.. NO STOP! Um, that’s my wife’s.

      • axhandler1 says:

        Such a stupid argument.

      • unpolloloco says:
      • CTrees says:

        Not sure if trolling or just dumb…

      • bluline says:

        Because it’s none of their business. Because, even if you have nothing to hide, you have a right to privacy. Because, if you have nothing to hide, why do the cops need to look in the first place?

        We all have things to hide. The curtains on your windows are a testament to that fact.

      • Foil says:

        A typical troll response to privacy is “You should let them look if you have nothing to hide.” It’s garbage conditioning that many fascist countries have used to brainwash people into letting them invade all aspects of their life. No thanks.

  3. StarKillerX says:

    I don’t see the issue here, as long as all that was done was retrieve the number of the phone, which, at least in my opinion, could be considered a cellphone version of “stop and identify” law that Indiana has on the books.

    • Cat says:
      • StarKillerX says:

        Yep, I saw that when I was checking if Indiana had that statute on the books.

        • Cat says:

          I still find the whole thing problematic, at least from a free speech standpoint. If I have the right to remain silent, then does that not imply that I can not be compelled to tell who I am?

          like the courts, judging by their split decisions and unwillingness to hear cases, find it problematic, also.

          But I’m also not quite sure how I would apply this to the cell phone number case if I were the judge.

          • TuxthePenguin says:

            “If I have the right to remain silent, then does that not imply that I can not be compelled to tell who I am?”

            While you can, police can force you to give fingerprints, surrender your driver’s license, etc. I guess if you were walking down the street with no identifyable information and your fingerprints were not in the system, it’d work.

        • frankrizzo:You're locked up in here with me. says:

          I’m still pissed that police can enter our homes without a warrant.

    • QrazyQat says:

      So we can’t feel superior to the Nazis in old movies anymore?

      • GuyGuidoEyesSteveDave‚Ñ¢ says:

        Exactly how often did the Nazi’s ask for “papers”? I wonder if it’s like the whole “people thought the world was flat” thing that has just become accepted as fact years later.

  4. Lyn Torden says:

    All the cops have to do is use the perp’s phone to call their own phone, and see the number. I don’t see any issue here.

    Downloading my files? Well, I don’t put my files on my phone. But I see huge issues with that, because the device’s role in that case is no different than a personal computer. Get a court order. And get it before the networked part of the encryption cipher key expires and is wiped off the server I get it from.

    • Difdi says:

      The difference between a computer and a smart phone is getting smaller and smaller every day.

      A police officer needs a warrant to nudge a mouse to terminate a screen saver to view what is on a computer’s screen. How is it that police don’t need a warrant to actually hit buttons and use menus on a computer simply because it’s hand-held?

      Does having an internet connection or a modem negate the need for a warrant to search a desktop computer?

    • framitz says:

      And what would give the cop the right to use my phone at all?
      I pay for it, using it without permission would be theft IMHO.

  5. dolemite says:

    Phones are digital storage devices. You could have invoices, diaries, home movies and anything else on there, or connected through the cloud. One phone search could dig up more info than spending 5 hours searching a house.

  6. Invader Zim says:

    Password protection.

  7. Mark702 says:

    Secure your phone via lock, combo, password, etc. You do NOT have to provide them with the access without a warrant.

    • Thyme for an edit button says:

      You do not have to provide them even with a warrant according to this court since you can assert your 5th Amendment right not to incriminate yourself by telling them the password.

    • Foil says:

      Unfortunately law enforcement have access to devices that allow them to download a phone’s memory bypassing PIN or authentication.

      “A US Department of Justice test of the CelleBrite UFED used by Michigan police found the device could grab all of the photos and video off of an iPhone within one-and-a-half minutes. The device works with 3000 different phone models and can even defeat password protections.”

      http://www.thenewspaper.com/news/34/3458.asp

      Welcome to fascist America.

  8. Jawaka says:

    Just curious, if a person were in a motor vehicle accident is a police officer allowed to check your phone log to see if you were on it at the time of the accident?

    • joako says:

      Does the law prohibit handsfree devices?

    • tungstencoil says:

      In general, no. If one could narrow the time of the accident down to the minute, or if there were other circumstances that allowed more pinpoint determinism, maybe (such as you continued to talk on the phone).

      There were some isolated cases in the early 00s of insurance carriers claiming customers were (more) responsible for accidents, raising rates/denying coverage, because they were using there phone during a collision. It was mostly scare tactics designed to delay or weed people out of the claims process, mostly because billing records are to-the-minute (not second) and not generally available, and the fact that it’s really difficult to tell what time exactly something happened.

  9. fsnuffer says:

    No matter what, when a police officer asserts a right to do something, verbally refuse. They may or may not have the right to do it but if you give them permission you waive your rights. Always retain the right to argue it in court.

    • bluline says:

      This! 100 times this! Never, ever, ever consent to a search of your body, your purse or briefcase, your vehicle, or your home. You have nothing to gain and everything to lose.

  10. exconsumer says:

    But how can they find the phones or look through them if they do not have a search warrant or consent?

    “Is no different than searching a container that someone might be carrying” agreed . . . ALSO illegal without a warrant or consent.

    • exconsumer says:

      Oh, they made an arrest. . . . did not see that part. Well, then yeah, you’re subject to search.

    • Bill610 says:

      IIRC, you are subject to search of the area around you and your person primarily for “officer safety”, which is to say to determine if you are carrying a weapon. The officer might take your phone away from you just in case it’s a “cell phone gun”, but it’s not very likely that he’s going to find a weapon that could be used against him in the memory of your phone. Pretty sure there’s not an app for that.

  11. Ed says:

    Two words:

    “Just enable PIN protection on your phone!”

  12. TRRosen says:

    Well if they were able to subpoena the phone records they must of already had some evidence against him. Actually they arrested him with meth so they would have had probable cause to search for anything in his possession that could contain evidence relating to the crime. Such as the number of his dealer or clients. If he had been arrested for a DUI it would have been an illegal search as phone info could not provide evidence in that case. Note courts have ruled that when your arrested police can only search your vehicle for evidence relating to your crime.

    • nickmoss says:

      Sorry, but if you are arrested for a DUI, the police can, and will, search your car. If they find an illegal handgun, you’re going to get busted for that also. Same goes for drugs, stolen property, explosives, etc.

  13. Gravitational Eddy says:

    expect no privacy.
    conduct yourself accordingly.
    remember this.

    • ancientone567 says:

      That is just plain ignorance of the law talking. You demand your rights, you don’t ask for them.

      • The Lone Gunman says:

        Allow me to introduce you to a very important concept in law:

        “Violate, then litigate.”

        Works for governments, corporations and business entities who are larger and better-funded than you are. As an example, think about TSA and the Fourth Amendment it tramples on each and every day.

  14. Quatre707 says:

    If you have a company phone, cops often don’t need to look at “your” phone. You would be suprised how common it is for IT departments to spit up call records, e-mails, voice-mails, and browser and search engine history. Even IT staff for small companies can often have access to that info, it’s just less likely to be backed up.

  15. FacebookAppMaker says:

    “especially since a U.S. Circuit Court recently ruled that authorities could not compel someone to decrypt a file on his computer, saying it violated one’s Fifth Amendment rights.”

    They managed to decrypt the drive anyway without her help.

    • Difdi says:

      Yes, but knowing the password to such a drive proves, if not ownership, then at least control of the files. Decrypting the drive without the owner’s cooperation would require that they then prove it was actually the owner’s.

      A small point, but a valid one.

    • MrEvil says:

      Only because the woman in that case was stupid enough to share her password with her ex-husband who rolled over on her at the DA’s first offer. Which is why I don’t share my passwords with ANYONE, ever.

  16. DanKelley98 says:

    Password indeed. Otherwise it becomes a witch-hunt.

  17. ancientone567 says:

    The key here is that the second those Police Officers had reasonable suspicion the suspect is now given up some of his rights. If you are suspected of committing a crime they can detain for a certain amount of time and identify you and even go through your pockets for certain justifiable reason under the law. If you have not committed a crime and your pulled over for say speeding in Connecticut then you are perhaps guilty of an infraction NOT a crime and they cannot search you or your phone. They can ask for a license and registration. They can also search your car if you don’t stop them verbally but saying, “Officer, I do not consent to any searches!” This is unreasonable search and seizure. If you don’t know your rights, you don’t have any! Learn the law. http://flexyourrights.org/

  18. benminer says:

    Sebastien Boucher would like to have a word with anybody who thinks you can’t be forced to provide your password. (after he gets out of prison of course)

    http://en.wikipedia.org/wiki/In_re_Boucher

    • Mark702 says:

      He gave up some info already. You can’t say, “sure, search my vehicle, but don’t check the trunk or glovebox”. It’s nothing or all. He should have not provided ANYTHING in the first place.

      • ancientone567 says:

        Well if they find a locked briefcase they need a search warrant unless you let them open that too.

      • teamplur says:

        No, you can always revoke your consent to a search. You can say ok, then decide you don’t want them there anymore and make them get a warrant.

  19. ancientone567 says:

    Watch this video and start to learn some of your rights: http://www.youtube.com/watch?v=yqMjMPlXzdA

  20. oldwiz65 says:

    That will not stop most police officers froms searching your phone as thoroughly as they wish. The only place you can challenge it is in a court and then only if you have the money to pay for a very expensive lawyer. If you are a drug dealer you certainly have the money for a good attorney. There is no way you can argue with a cop on the street about what is constitutional or not. You do as you are told and let them do whatever they want. Cops in America seem to be getting their training from translated Gestapo training manuals.

    • joako says:

      Yes it’s very true that law enforcement officers pretty much get away with what they want. If you want to assert your rights they can land you in jail for a day. But I’d rather deny, let them cuff me and get the evidence thrown out. Of course if you are in a hurry and 200% sure you have absolutely nothing incriminating…

      • oldwiz65 says:

        If you refuse, you are likely to get a beating as well as getting arrested, and you’ll need to post bail and get an attorney to defend you. It all costs money. I would much rather deal with a mugger than a cop. Give the mugger your money and phone and they leave you alone.

  21. Yacko says:

    Uh, a blank screen?

  22. Nobby says:

    I can just see my Black arse saying “no, you can’t search my phone”.

  23. Netstar says:

    Password protection, pin numbers, or any other security or encryption methods are useless. Police and FBI are already using a device called Cellebrite that can extract everything off of your phone. All they need is the make and model that is located in the battery compartment. Michigan State Police are currently using these units when they pull over drivers.

    Are you thinking of deleting your information? Doesn’t matter since the device can retrieve deleted information. Bottom line is don’t put information, photos, or any confidential data on your phones that you don’t want disclosed.

    If you have nothing to worry about since you didn’t do anything wrong. Wait! Big brother is desperately trying to find reasons to arrest you.

    http://news.cnet.com/8301-17938_105-20055431-1.html

    • JiminyChristmas says:

      If an officer would say something like “Can I take a look at your phone?” and you just hand it to them – you probably just consented to a search of your phone. If an officer just said “Hand over your phone.” and you did so, that might be consent as well. The way you would preserve your rights in that situation would be to follow instructions and hand over the phone, buy say “I don’t consent to any searches.” as you do it.

      The police have many methods where it seems they are making an innocuous request of you, but their request is crafted so that if you comply you consented to a search in a manner that would stand up to judicial scrutiny. The burden is on the person being detained to affirmatively assert that they are not consenting to a search.

  24. TheCorporateGeek Says Common Sense Is The Key says:

    Nothing…….It’s passcode protected and you’re not getting the code…threats of violence, strong arm tactics, whatever…..you’re still not getting the code. Unless you have a warrant, you’re not searching anything of mine.

  25. Laffy Daffy says:

    How about this? A friend’s brother was pulled over and when he declined the officer’s request to check his phone, the officer “accidentally” dropped it on the ground, then “accidentially” stepped on it three or four times

  26. magnetic says:

    I use the Android dot pattern on my phone, but I worry that it’s too easy to tell what pattern I use by the face-grease that I smear around on the screen when I enter it. Anyone heard of that being used to crack it?

  27. legolex says:

    My phone is password protected not because of anything suspicious, because I butt-surf the internet.