Last month, we wrote an in-depth blog post on searches of your home and other personal property. This sparked a lot of conversation around searches, warrants, and when law enforcement is permitted to search your property. While the law around searching your home might be well-known and established, the rules around cell phones, tablets, computer networks, and other electronic devices can be much more confusing and with new technologies come new standards.
In this post, we take a look at New York’s laws and standards on a police search of your devices, computer systems, and other technology. We identify three instances when the police are permitted to search your phone under New York law and one-time law enforcement are prohibited from doing so. If you have questions about a specific, police search of your cell phone or a friend’s feel free to contact our defense law firm located in New York City.
Law enforcement in New York can request and obtain a police search warrant for your electronic devices. This warrant must be obtained by a state or federal judge and state the exact devices or systems to be searched. For example, if the police ask to search the contents of your cell phone, the warrant should specify the phone for search. You are not required to produce or provide any devices not listed on the warrant.
When complying with a search warrant you are not required to answer questions about the device, provide additional information, or explanations that are not specified by the warrant. In short, there is no requirement to aid the police in accessing your device or locating the information they believe is on an electronic device. You are also not required to provide the passcode to your phone, as refusing to speak is the central part of your Fifth Amendment rights.
Many citizens want to give the impression, actual or otherwise, that they have nothing to hide from law enforcement. This means you may open your door to officers when they come to ask questions or willingly let the police search the contents of your phone.
You should always consult your criminal defense lawyer before cooperating with the police in these ways. Often, it is in your best interest to refuse consent to your electronic devices, just as it is best to restrict police access to your home.
However, it is important to note that you aren’t the only person that may give the police access to your electronic devices or computer networks. If you aren’t home when the police ask to enter your home or perform a police search of your electronic device, a roommate can say sure or yes and it has the same impact. As well, an employer can give the New York police or other law enforcement access to your laptop, computer and cloud information, if you aren’t in the office.
Every person in the United States is guaranteed the right to due process. Immigrants, even those who are undocumented, are entitled to the rights under the United States Constitution. The requirements of due process, under both the Fourth and Fifth Amendments, must always be balanced by the government’s interest in the safety and security of the American public. One time when safety and security take some precedence over other considerations is at the United States border.
Immigration officials at borders, including airports and shipping ports, are allowed to access or search your electronic devices. In particular, courts have upheld the right of these officials to search of mobile phones. The leniency and authority granted to agents at immigration borders extend to demands for your passcode or other password information to access your device. As well, an immigration officer doesn’t need probable cause or any indication of illegal activity to demand access to your device.
In every instance, the authority for the police to conduct a search of your electronic devices or information on the cloud is predicated on the circumstances of the search. You must provide consent, the police must go through the legal channels of a warrant, or you are trying to cross the United States border. Without these circumstances, for example, absent a warrant, you can refuse access to your cell phone or computer.
You do not have to turn over the cell phone in your pocket or take the screen saver off your computer. The police cannot make you access a server or give information on your network settings. Yet, even in these instances, there is one gaping exception. If the police search your home, office, or car and there is incriminating evidence on a phone or computer, in plain sight, the police can search it.
There are many instances in New York when a defendant feels their right to refuse a police search of their cell phone, computer, computer network, or other device was violated. The best person to ask about these instances is a criminal lawyer in New York. At Koch Law, we can assess your situation and provide advice on how an illegal search could impact your defense. You can call us at (844) 562-4529.