Can the police read my smartphone?

"When I was arrested, the police seized my smartphone. Now the police want access to my smartphone to search or read it. Is that okay?"

This is a question that is often asked of us, not only in cybercrime cases. In all kinds of criminal cases, detectives sometimes want access to the smartphone to search for photos, contacts, location data, Whatsapp messages, text messages, etcetera. As part of the investigation, the police are authorised to seize a smartphone. Because the contents of modern phones are usually encrypted, the police often cannot simply unlock the smartphone.

Access to the smartphone
If the phone is secured with an access code, the police will first ask if you want to give the code voluntarily. It is important to realise that you are not obliged to do so. If you do not want to give the code, it is sometimes pretended that this is strange. "If you have nothing to hide, can't you just give the code?" You don't have to let yourself be influenced by this. Smartphones in particular are full of private information such as photos, messages and internet history, so even if you have nothing to hide, you are of course free not to give the code. The police may not just force you to give the code.

However, the police may then try to gain access to the phone themselves. Sometimes they succeed by making a few attempts to guess the code. For example, many people use their year of birth or a variant of it. One can also try to 'crack' the phone by connecting it to special software. However, this does not always work. Especially when the phone has had the latest updates, it is not easy to crack it.

In cases that the police find important enough, the police can also choose to use physical coercion. Because many modern phones use biometric access (such as fingerprint, face and iris scan), the police can try to unlock the phone by this means. Then the phone can be held in front of your face, or the police press the unlock button with your thumb. Up to now this is allowed by the courts. The courts and the Supreme Court have yet to rule on this, but it is expected that this method will continue to be permitted.

Some people do not use such biometric access for reasons of privacy. Although fingerprint access may seem secure at first glance - fingerprints are unique - the police and others can access the phone more easily. Some people use a key combination that allows biometric access to be temporarily disabled in an instant.

Use in your criminal case
Once the police have access to your smartphone, it will be searched. This can be done manually (by searching and viewing specific photos, or the call history), but can also be automated. In that case, the phone will be read with special software and all information will end up in an extraction report. It is also possible to digitally search for specific search terms. If evidence is found in this way, the next question is whether this can be used in your criminal case.

If the investigation in the smartphone is more extensive than a quick glance, the requirement is that permission has been given by the public prosecutor or examining magistrate. If that permission has not been given, the investigation may be unlawful. Your attorney at law can put forward a defence to try to have the court attach consequences to the unlawfulness.

In short: the police may confiscate a phone, but as a suspect you never have to give the code yourself. However, the police can try to gain access with physical coercion via biometric access, such as the fingerprint or Face-ID. Once access to the smartphone has been obtained by order of the public prosecutor or examining magistrate, the content may in principle be used as evidence.

If your smartphone has been seized and has been or will be searched, you can always contact us for assistance in your criminal case.

Tags | biometric access, digital evidence, coercion, smartphone, read out