Can My Cellphone Data Be Used as Evidence After an Arrest?

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At Lotze Mosley, LLP, our Washington D.C. and Maryland criminal defense attorneys know that law enforcement, investigators, and prosecutors put a lot of stock into what an accused or arrested individual’s digital footprint says about their innocence or guilt.

While laptops and home computers can provide a wealth of evidence in criminal cases — both for the defense and the prosecution — cellphones provide an in-depth look at where the accused has been, both physically and according to the time. They also uncover phone calls and text messages that can tie the individual to a crime, or release him or her from further questioning.

The question becomes, what actions can be used by law enforcement to compel individuals to provide or enter their cellphone password for access to a device?

The answer is more complicated than you might think.

You Have the Right to Remain Silent: That Includes Providing Access to Your Cellphone

The Fifth Amendment of the United States Constitution forbids law enforcement from requiring an individual to provide any communication that may incriminate them. That includes answering any questions without an attorney present or giving testimony during the trial.

The same protection applies to your cellphone.

Forcing an individual to speak, write, or input their password into an electronic device requires that person to disclose information, which they have the right to refuse.

When Can Law Enforcement Compel an Individual to Produce Cellphone Data?

If a police officer asks you to unlock or search your cellphone, you have the right to decline their request. As experienced criminal defense attorneys, we recommend anyone who is being interviewed or who has been arrested for their involvement in a crime should decline any request to search their property, including their cellphone — even if they believe they have nothing to hide.

If an officer does not have a search warrant, specifically covering a search of your cellphone, you can turn down their request. The officer, however, may be able to take the cellphone as evidence during an arrest.

A search warrant is a document issued by a judge that authorizes a police officer to search a specified place for evidence, even if the person who owns the property does not consent to it.

To obtain a warrant, law enforcement must show there is probable cause a crime may have been committed or evidence that a crime exists in the place being searched.

There are a couple of exceptions to the required search warrant rule, which requires the police to reasonably believe:

  • Evidence on your cellphone may be destroyed before they can get a warrant.
  • There is a time-sensitive emergency, including situations where a child may be/has been abducted, or a bomb may detonate without immediate access to the cellphone.

Outside of these extremely limited exceptions, law enforcement must get a warrant to legally search your cellphone if you do not give them permission. Do not give them permission.

Contact Our Skilled Criminal Defense Attorneys in Washington D.C. and Maryland

The best course of action when responding to a police investigation, questioning, or arrest is to immediately contact our skilled criminal defense attorneys at Lotze Mosley, LLP by calling 202-393-0535. This will ensure your rights are protected from the beginning, so you can make informed decisions about your case.

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