By Andrew Lu

There's a hot legal topic affecting law enforcement in the digital age: When can police conduct searches of cell phones and laptops?

As you may know, smartphones and laptops can contain a wealth of information that was not contemplated in 1986, when Congress passed laws about government monitoring of digital communications.

So courts in different states have had a hard time coming up with a uniform rule as to when police can, and cannot, search your cell phone or laptop. In some states, police searches of  digital devices may be thrown out if officers do not have a warrant, while in other states, the evidence may be perfectly admissible in court, reports The New York Times.

The issue has been brought to federal lawmakers, who are considering changes to the 1986 Electronic Communications Privacy Act. In the meantime, whether police can search your cell phone or laptop may hinge on whether they have a warrant to conduct the search.

If Police Have a Warrant

If law-enforcement agents have a valid warrant to search your smartphone or laptop, you are likely out of luck regardless of what state you live in. To obtain a warrant, police typically need to show that they have probable cause to believe a crime was committed. In other words, the police will have to convince a judge that it is more likely than not that a crime has occurred, and that they will find evidence of the crime on your digital device.

If Police Do Not Have a Warrant
The issue gets much trickier when police do not have a warrant. In some states like Ohio, courts have found that police cannot conduct a warrantless search of a smartphone because a phone may hold "large amounts of private data," reports the Times. But other states like California have ruled that cops can look through a cell phone without a warrant, as long as the phone was with the suspect at the time of arrest.

Judges have compared cell phones to pieces of paper, suitcases, containers in a trunk, and face-to-face conversations in trying to find an analogy that fits with existing laws or court precedents, the Times reports. The result: very different rulings, and uncertainty for everyone.

So unless federal lawmakers get together and decide on a rule, or the Supreme Court issues an opinion on the issue, individuals challenging the search of their cell phones and laptops could see vastly different outcomes in court.

If you are facing criminal charges and the prosecution is relying on data from your smartphone or laptop, you will want to work with an experienced criminal defense attorney. Depending on the state you live in, you may have different rights when it comes to getting the evidence thrown out.


  1. lauren on March 3, 2013 at 3:11 am

    If they have a warrant to search your house for drugs can they search through your laptop with out a seperate warrant in virginia?

    • bruinlifer on March 3, 2013 at 6:01 am

      I am no legal expert, but my understanding (i.e. what I have heard, hearsay, rumors) is that they can only search through your electronic data if the search warrant is for something that could be hidden there. If they are not reasonably related, I would assume it to be unlawful. Now, they could argue that your digital space could potentially have evidence leading them what they are looking for, or implicated that you are guilty, but to me that seems too speculative and I don’t think it would hold up in court.

      If you are suspecting of online predatory actions or child porn, yes, they will check out your hard drive. If the warrant is to look for the carcass of an illegally obtained deer (off-season shoot), I don’t think you computer will be looked. Yeah, you COULD have emailed your brother and said you put the deer in storage locker, but I bet they need more than a hunch, evidence, or something specific to look for.

      • rick on March 27, 2013 at 2:18 pm

        In Ontario Canada like the person said above about enycruypted,putting a password on your phone or laptop,they cannot touch it.If you do not have some kind of password,its there’s.

  2. CBS on December 31, 2012 at 3:26 pm

    Hi Barry,
    I wish you would start producing decals that you would sell so that people could put them on there driver side window that would say ” Am I being Detained and am I free to go.
    I would by some from your site here

  3. Scooter on December 19, 2012 at 10:01 am

    Those are some really good suggestions. Another good contact method is to set up an email account with your business associate and both of you have the password. You can then write an email draft but never send it. Save it, and your associate can later log in, read the draft, and delete it and leave a message for you in draft form if need be. You can have separate or multiple (redundant) accounts for each, and create or dispose of them as need be.

    • bruinlifer on December 19, 2012 at 2:52 pm

      ahhh, yes thanks for explaining – that is indeed on I let out. If you choose to work this way, I suggest to NOT set this account up on you smartphone for easy checking of email. no only for a wife/gf with prying eye, but also for an added layer of protection against a probing LE officials

  4. cipher on December 16, 2012 at 11:53 am

    On any laptop or computer, use something like truecrypt with a very long passphrase you can remember while never writing it down. This is encryption that is open source, no back doors, and even the NSA would take years to decipher. The supreme court may rule in the future that you must tell them the password, but to my knowledge it hasn’t happened yet, and by the time they get through the wrangling and legal issues you can simply say you forgot what it was. There is likely similar encryption software for phones on Android or windows mobile by now.

    • bruinlifer on December 17, 2012 at 2:35 am

      never, never, NEVER talk to business associates using your smartphones standard texting program. There are many many alternatives, all depending on what exactly you are tyring to accomplish. For all of these, I suggest you create an acccount, but if possible, do not link it to any email account. CON: if you forget your password, you need to create a new account and distribute that new handle to your partners. PRO: that account canmnot be linked to you.

      SlySMS: Send separately a password to your recipient (preferably by voice either in person, or un an untapped, random public line. Now you can change the password with each message as an extra securtiy layer (say, youhave a pattern you follow or something), but that I feel is unnescessary and ouwl likely result in you or them having to writ something down. I have a password for each recipient and we just know that is always ours. With sly SMS, you actually text uinsg the facotry-provided SMS program, but the message is fully encrypted. What the recipient receives is a whole bunch of “random” letters, characters, symbols, etc. which is actually a link to openi the encruypted message in the app. Type in the correct password and viola! you have your messsage to view. Change active windows and the password is removed and message encrypted again. Limited to 125 characters/message.

      Gliph: No cop in his right mind would understand this one. 1. So long as you remember to log out when you wrap up your last session, you must enter a password to reopen the program, and rthere is an optioned to disable the Password Reset feature. Your wife stumble upon your phone and wants to know what they hell you are up to? Uh, i dunno, babe. So and so said tho try this app. Downloaded it, opened it once, never again used it as I couldn’t even figure out how to open it….. Here, your “handle” is a series of symbols that you create, up to 5 characters. Choose from mushroom, lightning bolt, skull and crossbones, dice, ice cream cone, star, music notes, etc. Once you connect with somone, you can use normal letters to assign them nickname just so you can keep your contacts safge. When you sign up, you are provided a few cloaked email addresses. You earn more by referring people. The cloaked email is really useful for, say, craigslist or other public online locations. THe cloaked address forwars automatically to your real one. Once you start getting a lot of spam, stop using that cloaked email and move onto a new one.

      TigerTexrt: This is another good one. You see when your messages have been read, you can recall messages, photos, and files at any time, and you can set a message lifespan before it self-destructs (even if not read)! You can also set message to detruct upon intial read.

      Wickr: And yet another good one. TOo good, actual. I can’t remeber login info, have been locked out fo too many attempts,a nd can’t remember pros and cons of this program. Whht I know is that I tried manhy programs, and my associates and I felt that the best overall programs for what we were doing did not include Wickr (but it may be right for what you are doing).

      My team’s top choices were Tiger and Gliph. My wife is very fond of openin my phone, seeing what apps i’ve been using, who i’ve been talking to,and who I’ve been texting. If you are a double-life liver (???) such as myself…. don’t program assciates’ real number to their name. If you are riding in the car for a picnic with the fam and he calls, you don’t want your stereo saying Creepy Guy #1 us calling you Dave. houdl I mute the music and put him on speaker for all the hear? Hell no. You want a random number to show up and you go, hmm.. don’rt know that number. I will declien and put it to voicemail. You brought a tablecloth right, honey? You program a number off by 1 or 2 digits. You have to manually dial when you need to all, but that step helps. Also, don’t text him adn not delete the text! Rookie mistake has snagged me a couple times. He knows my situ. THe rare times we do text likee normal people (she has the kids for a weekend), at some point, I go okay man, signing off. He knows thart menas I can no longer guarantee the safety (1st acess) of my phone. I may go in the bathroom, it goes offm, and viola! BUSTED. BTW – du yourself a favor and turn off all notifications, banners, etc. you don’t want her to preview your texts while your phone is locked! Of cousrse you get plucked enough like me and are on double-secret probabtion she demands acess code for that very pursose,, hency the mesaure I have to go throuyugh. Yes.. mostly for the wife, but wil work well for yoru standad beat 5-0 any day.

      So, where were we? oh, yeah. Programs are closed, he sends a message, how do I know it is there? a simple one word text or code. What is that Who is it from? I dunno, babe. Ever since we voted for So America Thinks They’ve Got Talent and are The Idol last summer I have been getting all these ranodm texts and calls. You sure it isn’t from some porn site? What?!? Babe… really? Ew, grosss! Do you realy think that I am the type of person to look at those vile things?!?!? You know what I have been jonesin’ for? yeah, let’s do another picnic tomorrow.. I hear the petunia’s are in bloom.

      Back on track. one word.. Gliphin (obvious), Roar (tiger), kick-it, of wick-it etc. *(wicker). And for sly? You don’t need one.. it comes through regualr progrma already (whcih is why I don’t use it.. she woudl see wired link, click on it, see that it opoens an new app called SlySMS and fuck, BUSTED AGIAIN!” How would I explain the precesnec of trhat app.’

      There are countles other apps great for all of this. Make racy photos you send appear harmless. Morph your busines texts into mundane How was your day? talk. You an even change the appearnce and names of apps so that they all look liek your fantasy high schoool rollar hockey league depth charts. oh, the smartphone. I can’t even imagine how we got by before. Oh righm My beeper. that was nice, actually. .didn’t have to worry about leving it aroudn and her picking up all my business. I have tried to go back against the smartohnoe to no phone. She won’t allow it. But how will I know where you are? es.. that is my point. The phone is smarter than we are. I don’t need to be smarter than the phone, just smarter than her. So far, track record not looking so good. But with the cops, who don’t know me as welI to recodnize when i mgiht be, say, telling an exaggerated truth, I am flawless (save for the two DUIs).

      I hope somebody found my rambling useful.

  5. Cian Moriarty on December 14, 2012 at 7:17 pm

    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” 4th Amendment to the Constitution of the United States of America

    It is obvious given this that judges are either stupid or liars if they uphold that a person phone or computer can be searched without warrant. Clearly “papers” includes “letters” and people today don’t write “letters” they type “SMSes” and “emails”, and to claim that an SMS or email and or someone’s writings on their personal computer or other electronic device doesn’t legally constitute their “papers” is intellectually dishonest.

  6. bruinlifer on December 11, 2012 at 3:48 pm

    I’ve got to move out of California.