When police ask to see your phone
What to do
- Ask the officer what they want to see, and why.
- Ask the officer whether you can say no.
- If you’re arrested or held, ask for a lawyer.
- If police keep your phone, ask how to get your phone back.
- When you can, write down what happened: who asked, what they looked at and what they kept.
- Ask a lawyer or a legal aid office what the rules mean for your own case.
The rules below are what courts and governments say, not advice on your case.
United States: what the courts and the Justice Department say
In Riley v. California, in 2014, the US Supreme Court asked what police must do before they search a phone taken during an arrest. The Court’s answer was "get a warrant". A warrant is permission from a judge.
The Court said a warrant is generally required. The Court also said the information on a phone isn’t immune from search. The Court accepted that police can take and secure a phone while they seek a warrant.
The Court said an emergency can justify a search with no warrant. A court then decides whether the emergency justified that search.
If you agree to a search. The Justice Department’s manual for federal prosecutors says agents can search with no warrant if a person with authority over the phone agrees voluntarily. A court decides whether the agreement was voluntary. One thing a court looks at is whether the person was told they could refuse. The manual dates from 2009, before Riley, and Riley doesn’t discuss searches people agree to.
State rules. Riley is about the US Constitution. The federal courts’ education pages say each state has its own constitution and laws. A state can give you more protection than the US Constitution, but not less. So your state’s rules may give you more protection.
Canada: what the Supreme Court and Justice Canada say
In 2014, in R. v. Fearon, the Supreme Court of Canada ruled on phones found during a lawful arrest. The Court said police can search such a phone with no warrant, under set conditions. The judges split 4 to 3.
Justice Canada lists 4 conditions. The arrest is lawful. Police have a valid reason for the search, tied to the arrest. The search goes no further than that reason. Police keep detailed notes of what they look at and how.
The Court said the search will generally cover only recent emails, texts, photos and the call log. The Court also said that list isn’t a fixed rule, and other searches may be justified in some cases.
Justice Canada says that, in general, a search with no warrant is presumed unreasonable unless it can be justified. Justice Canada also says agreeing to a search counts only if you’re fully informed and you agree voluntarily.
Justice Canada says the Charter gives you the right to a lawyer without delay if you’re arrested or detained. You also have the right to be told so. Each province and territory has its own legal aid plan. Justice Canada lists the plans.
United Kingdom: what the Home Office says
Police can ask you to hand over a phone and agree to let them take information from it. The Home Office code says this request most often goes to a victim or a witness. The code says you must get a written notice first. The notice says what police want, why they want it and how they’ll deal with it. The notice also says you can refuse, and that the enquiry can carry on if you refuse. The code says nobody may pressure you to agree. Read the Home Office code.
That code doesn’t cover a search warrant or other compulsory powers. The code recommends against using those powers to take a phone holding personal information from a victim or a witness. The code says a suspect’s phone is likely to be seized under other powers.
A separate Home Office code covers passwords. A public authority, such as the police, can get permission to give you a written notice. That permission can come from a judge. The notice can require you to disclose a password or make locked information readable. The code says these notices are most likely for someone who is the subject of an investigation or connected to it. The code says failing to comply is a criminal offence.
GOV.UK says you have the right to free legal advice if you’re questioned at a police station. You can ask for the duty solicitor. If you’re unhappy with how police treated you, GOV.UK says to contact the police force or call 101. The law on being arrested is different in Scotland and in Northern Ireland. Read Being arrested: your rights.
What the rulings don’t settle
The US and Canadian rulings above don’t say whether police can make you unlock your phone. Ask a lawyer about that.
Riley is about phones taken during an arrest. The Court said the case didn’t decide questions about digital information in other circumstances.
A border has rules of its own. Read At a border, or when an official asks to see your phone.
This page covers only the US, Canada and the UK. Anywhere else, ask a local lawyer.
Underlock is coming soon to the App Store. Here’s how it will work.
What Underlock does
- Somewhere to keep copies. Underlock is a private vault app on your iPhone. Your vault can hold your note of what happened, or a photo of a paper police gave you.
- Keep the originals. Importing puts a copy of each photo in your vault. We can’t say a copy in your vault will be accepted anywhere. So keep the originals where they are until a lawyer says otherwise. When Underlock asks Remove the originals from Photos?, choose Keep.
- Underlock doesn’t change the law. Police or a court can still ask for what you keep. Officers may ask you to open your vault. Once your vault is open, an officer can see everything in your vault.
- We have no copy. We never receive your files, your pattern or your keys, so we can’t open your vault for anyone or hand your files over.