Do You Have to Help Law Enforcement Search Your Smartphone or Tablet PC?
Let’s say you find yourself in a sticky situation. You have some evidence on your smartphone or tablet PC and an officer of the law demands to see it.
Do you have to turn your device over and let them search?
Well, it depends.
The First Consideration: Does the Officer Have a Warrant?
If they don’t, they cannot demand that you hand over your smartphone or tablet PC. The 4th Amendment protects your rights. In fact, the Supreme Court ruled this, so it applies to all states in the United States.
In specific, the 4th Amendment says “each man’s house is his castle.” In layman’s terms, the government cannot unreasonably search and/or seize property from your home.
Centuries ago, when kings had unlimited power, they could take whatever they wanted from whomever they wanted. And they could it for any reason for any time. So in the beginning years of our nation, the existing states at the time (1791) ratified this amendment to the US constitution.
If the officer doesn’t have a warrant, you politely refuse and do not allow them to take your tablet PC or smartphone.
When the Officer Does Have a Warrant…
The story changes. He now has the right to take these items from you. So he does that.
And then he wants to take a look at what’s on your device.
But let’s say that you’re a cautious person, and you have some tight security measures in place. And, you know there’s some incriminating evidence sitting on it.
So, the officer says, “Can you give me access to your device?”
Do you have to give the officer access?
This Is Where Things Get Tricky!
You can certainly give the officer the right to do so if you want to.
But if he repeats his demands, and you refuse, will you be in violation of the law?
In reality, the answer lies in the 5th Amendment, and it’s still playing out in courts as to whether you are required to help the officer. This amendment protects you from having to testify against yourself.
You might remember Mark Fuhrman in the OJ Simpson murder trial, who repeatedly said, “I plead the fifth.”
Now with devices, it’s not always clear where the 5th Amendment protects you. In Virginia, for example, the court found that if a fingerprint protects access, officers could force suspects to provide that.
However, they ruled against the provision of access codes, stating that amounts to “extortion of information,” which requires a suspect to testify against themselves.
But because that’s a state court ruling, it carries absolutely no weight in Texas.
The truth of the matter is that right now, the law is unclear and changing. That’s why you need an experienced criminal defense attorney fighting for your rights.
If you try to do it on your own, you may spend some time in a safe and secure place… with other people who don’t really want to be there.
…And maybe a long time!