By GNGF Design/Development on October 2nd, 2024 in Uncategorized
Houston police are busy, issuing over 62,000 citations and arresting over 15,500 people each month. For those who are cited or arrested, one question that often arises is, “Can police search my phone?” You are protected to some extent under the Texas Constitution, Article I Section 9.
What the constitution states is that:
- You’re protected from unreasonable searches and seizures
- Protections extend to your house, papers, possessions and persons
Your phone is a possession, and based on the Constitution, you do have protections in place that block a police officer from searching your phone.
As with all laws, there are exceptions in place that we’ll discuss shortly.
Can Texas Police Search Your Phone?
If you read through Section 9 of the Penal Code, you’ll find that in most cases, the police will need to have a warrant to search your phone. Even if you’ve been arrested, law enforcement will need to have a warrant to force you to unlock your phone.
You have a right to refuse to unlock your phone, but if there is a warrant, you may be compelled to unlock your device.
Points to Remember
Police officers can ask to search your phone, but if no warrant exists, you do not need to comply with this request. You also do not need to hand over your phone without a warrant.
Often, you’ll feel pressured by the officer to hand over your device, and you may even be told that you have to hand over your device, but this is false.
If the officer does search your phone and there’s no warrant, it’s important to contact an attorney as soon as possible because you’re a victim of an illegal search.
Exceptions
You may be wondering, “Under that circumstances can police search my phone without a warrant?”
If you give them permission, law enforcement can search your phone, even without a warrant. You may even be told that there are “exigent circumstances” in which your phone can be searched. In this case, the officer may argue that they can search your phone due to:
- Immediate risks that you’ll destroy evidence on the device.
- Officers are pursuing a suspect who is fleeing
- Someone being in danger of death or injury
Probable cause must exist for the officer to search your phone without a warrant. We do not recommend giving consent to a search without a warrant under any circumstances.
You have rights under the Texas Constitution and the Electronic Communications Privacy Act of 1986.
If you are stopped or an officer asks to see your phone for any reason without a warrant, it’s up to you to exercise your right to privacy. Officers must abide by the law and without serious reason, a judge will not grant a warrant for your phone to be searched.
What Information Can the Police Retrieve?
If the police do get a search warrant or you give permission to search your phone (not recommended without consulting a lawyer first), a variety of methods can be used to retrieve your:
- Text messages
- Voicemails
- Emails
- Call logs
- Photographs
- Videos
Depending on the circumstances, law enforcement may use more sophisticated methods to extract deleted or unique information if they are looking for something specific.
The police may also be able to gather third-party data on your phone without even needing physical control of your device. For example, if you back up your device on iCloud, law enforcement can get access to your information via Apple. If they want access to your messages on social media, they can request access from the platform.
A court order is the only thing they need to get their hands on this data.
What if the Police Conduct an Unlawful Search of Your Phone?
An illegal search of a phone is treated like any other unlawful search. Any evidence obtained in the search will likely be excluded as evidence.
In some circumstances, an unlawful search such as this can lead to a case being dismissed, the charges being dropped or a more favorable plea bargain.
Your phone contains a wealth of personal information that law enforcement would love to use against you. However, Texas and federal laws provide some protection, and the police must go through the proper channels to get access to your device.
If you believe that your phone was illegally searched or you’re concerned about your rights, contact an attorney as soon as possible. An attorney can answer questions like:
- Can police search my phone?
- Can the police use the information on my lockscreen against me?
- Can law enforcement search my phone data through a third party without a warrant?
Understanding your rights is an important first step in protecting yourself if you are arrested or charged with a crime.
If you are facing criminal charges or believe your phone has been searched illegally, contact the Law Office of Nathaniel Pitoniak today to schedule a consultation and find the best course of action to take in your case.
