Are police allowed to search your phone? Article 1, Section 9 of the Texas Constitution is very clear on the subject: “The people shall be secure in their persons, houses, papers, and possessions, from all unreasonable seizures or searches.”
Keeping your phone is easier said than done. Police officers have persuaded hundreds of thousands of individuals to hand over and unlock their phones through pressure and promises.
These folks are skilled manipulators. That’s why it’s important to know your rights, stick to the fundamentals, and get familiar with the tactics police may use to trick you into willingly providing consent to search your phone. You'll hear the same ambiguous language around probable cause that convinces people to allow vehicle searches. Don't fall for it.
Let’s start with the basics under Texas law.
You have no obligation to unlock your phone.
During a traffic stop, law enforcement may ask you to hand over or unlock your phone. The law says that you’re allowed to say no.
Article 1 of the Texas Constitution, the U.S. Constitution’s Fourth Amendment, and years of judicial precedent reinforce the notion that police cannot force you to hand it over or to provide a passcode. That’s true even if you’ve been arrested.
Police may argue you’re obstructing justice—you’re not.
Refusing to unlock your phone is the lawful exercise of your rights.
Obstruction of justice applies only when you willfully interfere with law enforcement through deception, physical action, or by disobeying a lawful order, per Section 38.16 of the Texas Penal Code.
So, what does obstruction of justice actually look like?
When you lie to an officer, attempt to pull away from them or resist while being detained, or escalate the situation, they may argue that you are obstructing. They'd be correct. Failing to provide basic identifying information, like your name or address, also falls under this umbrella.
Avoiding obstruction-of-justice charges is easy. Don’t resist; Just make it clear that you do not consent to the seizure or search of your phone.
What if a police officer takes your phone without consent?
It’s unfortunate, but sometimes police do not follow the law. It’s rare, but if a police officer takes your phone, even by force, there’s zero upside in resisting in the moment. We fight in the courtroom.
Say it again. We fight in the courtroom.
The exclusionary rule then comes into play.
Here’s the good news: If they search your phone without probable cause, anything incriminating they find is inadmissible in court.
That’s called the “exclusionary rule.” Evidence obtained through an illegal search gets thrown out.
Seizing a phone is not the same as searching it.
Police may temporarily hold your property, such as a phone. But they still need probable cause and a warrant to open it and go through your messages or call history.
There are exceptions, called “exigent circumstances.”
If police deem a situation to be an emergency, they may be able to search your phone without a warrant.
For example, an exigent circumstance could be if there’s an immediate risk that you’ll destroy evidence.
If a person is in danger of injury or death, law enforcement could also have exigent circumstances allowing for a warrantless search.
A warrant also changes the calculus.
Once law enforcement has a warrant to search your phone, refusal is no longer an option.
A judge needs evidence to grant a warrant.
Law enforcement must establish there’s probable cause to believe a phone contains evidence of a crime. They must also have a specific description of the phone.
Police have a few tactics to get you to unlock your phone.
Officers know that even if they can’t force you to give them your phone or passcode, many people will if they feel pressured.
“Refusal equals guilt.”
One common tactic is to say, “If you don’t let me see it, I’ll assume you’re hiding something.” But you shouldn’t let that sway you.
A jury is not allowed to consider refusal here to be evidence of guilt.
“Just a quick search.”
But once the phone is in their hands, anything they’ve said goes out the window. Don’t rely on their word when your rights are at stake.
Common-sense tips to avoid unlawful searches of your phone.
If you’re pulled over, keep your device out of sight. That could be in your pocket, bag, or center console.
Use a numerical passcode, not Face ID or fingerprints.
Some courts have ruled that police can force you to unlock your phone with your fingerprint or face. The argument is that the Fifth Amendment doesn’t protect physical identifiers.
A passcode is considered testimony, though. It’s protected.
Gold Legal challenges illegal phone searches.
If any step in the search process fails to pass muster, we file motions to toss the evidence. We will look for unlawful seizures, weak probable cause, or evidence obtained prior to a warrant to find a path to dismiss your case.
Call today.
Gold Legal, PLLC, knows how to shut down unlawful searches before they harm your case.
Contact us today for a confidential consultation.
— Kandi Gilder, Attorney at Law
