Digital Privacy Rights: What Happens If Your Devices Are Seized

If law enforcement took your phone or laptop, would you know what to do?

Most people wouldn’t. And that’s a problem considering how much of our lives we store on our digital devices. Text messages, photos, email, bank accounts, location history…

You get the idea.

Your digital devices store your life.

Unfortunately…

Police conducted over 46,000 device searches at the border in 2024. That’s over 4X more than were done in 2015.

We’re not even including searches that happen inside the United States.

What you’ll learn:

• Your Fourth Amendment Rights Explained

• When Police Can (And Cannot) Search Your Devices

• What To Expect After A Device Search

• Learn How To Protect Your Digital Privacy Rights

Your Fourth Amendment Rights Explained

The Fourth Amendment guards you from “unreasonable searches and seizures.”

In English?

Law enforcement typically needs a warrant to search your property. And this includes your cell phone, tablet, and laptop.

But….

Not all searches are equal.

Let’s say you’re being investigated for potential criminal activity. Now your Fourth Amendment protections are much more important. That’s why working with a criminal defense attorney is always your best option if you believe your rights have been violated.

Having criminal defense services from the Rubin Law Office who knows how to spot a violation could mean the difference between having your rights upheld or tossed aside.

One case, in particular, laid this foundation:

In Riley v. California, the Supreme Court ruled police need a warrant to search your cell phone after making an arrest. The court stated:

“A cell phone is not like a wallet or a pack of cigarettes.”

Your cell phone holds the “privacies of life.”

That’s not a quote from Google either. According to Pew Research, 91% of Americans own a smartphone.

When Police Can Search Your Devices

Police can search and seize your devices legally if certain conditions are met. Understanding when they can and can’t search your devices is half the battle.

Here are common exceptions to the warrant requirement:

You consented to a search

By consenting to a search, you’re waiving your Fourth Amendment rights. You never have to consent to a search.

Valid search warrant issued

Law enforcement submitted evidence to a judge who agreed there was probable cause to search your devices.

Exigent circumstances exist

This includes emergencies where evidence may be destroyed before police can obtain a warrant.

Border search exception

Law enforcement can search your belongings at borders and ports of entry. However…

Searches at the border are a whole other beast.

Just starting within 100 miles of a border, your 4th Amendment Rights are diminished. That covers two-thirds of the United States population.

What To Expect After A Device Search

Alright, let’s say they took your phone. What happens next?

It depends.

Device seizures during an arrest for criminal charges are different than your phone being taken at the border.

In general….

Law enforcement will seek a search warrant if they don’t already have one. This warrant will need to establish probable cause that your phone contains evidence of a crime.

Once they get the warrant…

Cops will make a forensic copy of your phone. And we mean everything.

Deleted files, browsing history, app information, text messages, emails, pictures. If they can access it, they will.

How long will this take?

Anywhere from a few days to several months.

Police can take your phone for months.

Border Search Exception Problem

Raise your hand if you travel outside of the United States?

Anyone?

See, at border crossings, your digital privacy rights aren’t the same as they are within the United States.

U.S. Customs and Border Protection agents can search your phone and computer without any suspicion of illegal activity. They can look at pictures, scroll through text messages, etc.

As for forensic cellphone searches?

There’s still debate as to whether reasonable suspicion is required. Some circuit courts say it’s needed. Others have ruled the opposite.

This isn’t a blog post about airports. But know that border searches are far different than other encounters with police.

How To Protect Your Digital Privacy From Searches

You can take action today to protect your digital privacy from being searched.

Remember:

If police ask to search your phone, you’re not required to give consent. Politely refuse and ask if you’re free to leave.

Here are some other things you should know to protect your digital privacy rights:

• Use strong passwords. Biometrics like fingerprint identification and facial recognition may not receive the same legal protection as passwords.

• Everything stored in the cloud could be obtained by law enforcement.

• Make a record of your interaction. Write down the date, time, location, officer names, and any receipt you receive when your phone is confiscated.

Contact a lawyer immediately. You should already be doing this, but the sooner you get legal representation, the better.

What To Do If You’re Under Investigation

Being investigated can feel scary and intimidating.

Your first instinct may be to delete everything. Don’t do that.

Here’s what you should do if you’re under investigation:

DO NOT destroy evidence. This could be used against you and you could be charged with additional crimes like obstruction of justice.

DON’T discuss the investigation using your digital devices. Everything you say can be used against you.

DO exercise your right to remain silent.

And most importantly…

Contact an attorney immediately. Time is of the essence. A qualified criminal defense attorney knows how to deal with law enforcement and can help protect your rights.

Wrap Up: Everything You Need To Know If Your Devices Are Seized

Digital privacy is one of the most important privacy topics we face today. Your phone has more personal information about you than your house.

Remember:

Police need a warrant to search your digital devices. But, they don’t need a warrant at the border.

You have the right to refuse a search. But politely. Always ask if you’re being detained or if you’re free to go.

Deleted data can be found.

Getting an attorney quickly is crucial.

Digital privacy rights aren’t cut and dry. Technology is advancing faster than case law can keep up with. But that doesn’t mean you shouldn’t educate yourself on your rights.

Don’t wait until your phone or laptop gets seized by law enforcement to become informed on your rights.

Study up. Stay safe, and don’t let your guard down.

But if you find yourself in a situation where your rights have been violated…

Contact a lawyer right away.