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Don't give permission to search your personal electronic devices

What should you do if a police officer asks if it's okay to look at your smartphone, tablet or laptop?

An officer or detective may ask your permission in the tone that implies that asking is merely a courtesy, but make no mistake -- if the police had the right to look at your smartphone or other electronic device without your permission, they wouldn't be asking. Do not surrender that right without first speaking to an attorney.

Under the Fourth Amendment of the Constitution, you're guaranteed protection from unreasonable searches -- this protection has been held to extend to the personal electronic devices that most people carry, including their smartphones, tablets and laptops.

You're entitled to this right even if you are arrested. While that generally gives the police the power to examine your phone to make certain that it doesn't contain some dangerous alteration (like a bomb), that still doesn't grant police the right to review the data on the phone without a warrant.

The Supreme Court has held that smartphones and other electronic devices are not the same as wallets, vehicles or purses -- electronics carry far more personal data with them and can reveal a suspect's entire history of activity, including personal communications, for days or months at a time. That puts them more in the category of someone's office or home, both of which require a warrant to be searched.

It's important to understand why you shouldn't ever give up this right without making the police get a warrant. Simply put, you have no idea exactly what sort of evidence the police may actually find on your phone that they will decide implicates you in a crime. For example, even having the phone number of a known narcotics dealer in your possession could be used against you as "evidence" that you are somehow involved in drug trafficking

By obliging the police to get a warrant, you may stop them from actually proceeding with the search altogether if they know they don't have just cause. If they do obtain a warrant and proceed with the search, your refusal to consent preserves your attorney's ability to argue that the warrant was unjustified. That could ultimately be key to your defense.

For more information on how our firm may be able to help with your criminal defense case, please visit our web pages on the subject.

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