According to Consumer Affairs, 97% of Americans own a mobile phone, equaling about 330.8 million people. Last year, the U.S. had over 310 million smartphone users, one of the world’s largest smartphone markets.

Our Albany criminal defense attorneys at O’Brien & Eggleston PLLC know that cellphones are a large part of nearly everyone’s life in New York and often hold the key to critical information, like where they have been, who they have been talking to – and what about – which apps they are using, what pictures or videos they have taken, and so on.

The question becomes with so much information stored in a single place, can your cellphone data, information, and contents be used as evidence after an arrest? The answer is more complicated. Here, our Albany County defense lawyers explain.

Cellphone Data Used as Evidence

You Have the Right Deny Law Enforcement 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.

If a police officer asks you to unlock or search your cellphone, you have the right to decline their request. As experienced New York criminal defense attorneys, we recommend that anyone being interviewed or 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.

Can the Police Gain Access to My Cellphone Data Without My Consent?

Generally, law enforcement officers must obtain a search warrant before accessing the contents of a cellphone, including text messages, emails, photos, and other data. The warrant must be based on probable cause and issued by a judge.

They must have probable cause to believe that the cellphone contains evidence of a crime before obtaining a search warrant. This typically requires specific facts that would lead a reasonable person to believe that a crime has been committed and that evidence can be found on the cellphone. If an officer does not have a search warrant specifically covering a search of your cellphone, you can turn down their request.

There are 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 permit them. Do not permit them.

Evidence obtained in violation of the Fourth Amendment or other constitutional rights may be subject to suppression under the exclusionary rule. Simply put, the evidence may be excluded from trial if the court determines that law enforcement officers violated your constitutional rights when obtaining cellphone data.

Contact Our Criminal Defense Attorney Today

If you have been arrested for a crime in New York, contact our Albany criminal defense attorneys at O’Brien & Eggleston PLLC today by calling (518)-391-2369 or online to schedule your initial appointment. We have a strong track record of producing real results for our clients. Allow us to pursue a positive outcome for your case, too.

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