If you get arrested, the police may confiscate your property. This could include your phone. Naturally, you may be nervous that the police are going to try to access the device as they investigate the alleged criminal activity. They may believe that pictures, videos, text messages, social media messages and other data will be related to the case.
If the police want to look on your phone, they will generally start by asking for your consent. They are hoping that you will use your passcode, fingerprint or other biometric data to open the phone for them. You can give them your consent if you want, but you are under no obligation to do so. In many cases, it is best not to give consent and not to answer questions until you have a lawyer – you do have a right to legal counsel.
What happens next?
If the officers do not get consent, then the police have to get a search warrant. This is similar to when they want to search a car or a home. If they want access to your device, they have to take the time to get the search warrant from a judge, meaning they must show that it is justified and necessary in advance. They can’t make you open the device during the initial arrest.
Finally, remember that they may be able to serve the warrant to other companies that are in control of your data. If they want to look at your photos and those photos are backed up on Google, for example, they could serve Google a search warrant. If Google turns over the data, then they don’t actually need to open your phone.
Digital searches are growing more common, and they can certainly complicate arrests and criminal proceedings. Be sure you are well aware of your legal defense options at this time.