Police Can Search Your Phone in Minnesota

What the law says in regard to cellphones and your privacy rights

By Benjy Schirm, J.D. | Last updated on March 22, 2022

Today many of our lives are centered around our phones. We use them constantly, they have become an integral part of the way we find things, get places, and interact with society. Many of us hold private information on these devices, and if they fall into the wrong hands, that could be catastrophic.

The Fourth Amendment prevents police officers from unreasonable searches and seizures of personal property. But if a police officer wants to search your cellphone, they can do it in two ways.

  1. They can ask for your permission to search the phone, which you should not give without first consulting with a lawyer. Even if you have nothing to hide, there is no reason to hand your phone over to an officer until they have a warrant.
  2. They receive a warrant to gain access to your phone. A warrant will often be given, since phones can be readily destroyed and the courts have an interest in preserving evidence if there is probable cause and reasonable belief a crime has been committed.

Even with a warrant, though, your password may keep them out. A man named Diamond was arrested and charged with burglary and concealing stolen property. As part of the case against him, the police compelled Diamond to unlock his cellphone using the fingerprint ID feature of his phone. They found incriminating texts on the phone that were used at trial and he was found guilty. On appeal, his attorneys challenged the testimonial nature of fingerprints.

The Fifth Amendment guarantees that you have the right to not incriminate yourself in a crime. Taking this a step further, the courts have ruled that this privilege only protects people from being incriminated by their own testimonial communications. To determine whether something is a testimonial communication, “the communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” The problem with asserting that your fingerprint is testimonial is that it is considered by both the courts and law enforcement as physical evidence— just like blood samples, handwriting or clothing.

Many of the current cellphones allow for fingerprint or facial recognition to open your phone. If your phone is opened, that allows anyone who has access to that phone to use any of the data in the phone as well. In Diamond’s case, and in many others, that could incriminate them with pictures, maps data, texts and more.

With the current state of the law, it is apparent from this case and others that your fingerprint password and facial recognition to get into your phone may prevent a stranger from getting in, but it certainly won’t keep the police out. It is recommended that that you disable these features on your phone to protect your personal data and your freedoms.

If you have been arrested with your phone on you, there is little chance of keeping the information locked in it secret from the authorities, but to give yourself the best chance you will want to contact a reputable and experienced criminal defense attorney.

For more information on this area of law, see our overviews of criminal defense, DWI and traffic stops.

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