Can The Police Use the Contents of My Phone as Evidence?

Our smartphones contain a wealth of personal information: messages, photos, videos, and more. But what happens if law enforcement seizes your phone as part of a criminal investigation? Can they access and use the contents of your phone as evidence against you? Consulting an experienced Wisconsin criminal defense attorney can help you understand your rights.

Warrants for Cell Phone Data

A recent case from the U.S. Court of Appeals for the Eighth Circuit, Lindell v. United States, sheds some light on this issue. In this case, the FBI seized MyPillow CEO Mike Lindell's phone while investigating a security breach of election machine servers in Colorado. Lindell challenged the seizure, arguing that the warrant was too broad.

The Eighth Circuit ultimately ruled that the warrant was valid because it included protocols to protect confidential and privileged information. The court also noted that while the government may retain seized property if it has an ongoing evidentiary need, at some point, it must justify continued retention or return the property.

Forcing Suspects to Unlock Data

In another case that came before the U.S. Court of Appeals for the Eleventh Circuit, an individual had been held in contempt for refusing to decrypt hard drives seized by law enforcement. The Eleventh Circuit ruled that forcing the defendant to decrypt the drives would violate his Fifth Amendment right against self-incrimination, as it would be akin to testifying that he knew the drives existed and how to access them.

The Utah Supreme Court relied on this Eleventh Circuit case in a 2023 decision, State v. Valdez. In Valdez, the court held that requiring a defendant to provide his cell phone password to police would violate the Fifth Amendment. The court reasoned that verbally communicating a passcode is a testimonial statement, unlike just physically unlocking a phone.

The court in Valdez also ruled that prosecutors violated the defendant's rights by commenting to the jury on his refusal to provide his password. Prosecutors cannot use a defendant's choice to remain silent as evidence of guilt.

What This Means for Your Case

So what does all this mean for you? The key takeaways are:

• Police generally need a valid, specific warrant to seize and search your phone.
• They may be able to retain your phone for a period of time but must justify continued retention.
• You have a Fifth Amendment right not to provide your password, as this could be considered self-incriminating testimony.
• Prosecutors cannot comment on your refusal to provide a password.

However, every case is unique. If police have seized your phone or other devices as part of an investigation, it's crucial to have an experienced criminal defense attorney evaluate your case and protect your rights.

Contact an Eau Claire Criminal Defense Attorney Today

At Cohen Law Offices, we are dedicated to protecting your liberty and your interests. If you have been charged with a crime, our skilled and knowledgeable attorneys will work diligently to ensure that the court dismisses any evidence the police have illegally obtained.

We have fought on behalf of clients across Northwestern Wisconsin since 1991 and are ready to put our experience to work for you. Call us today at (715) 514-5051 or contact us online for a confidential consultation with one of our Eau Claire criminal defense lawyers.