When encountering police in New York, it is essential to understand your rights and to plan your response ahead of time. Many useful guides exist online offering advice on how to handle police encounters, but few of these address the growing question of cellphones and digital data.
Police in New York may ask or demand to search your phone, but your rights remain the same for digital data as with other property.
The growth of technology does not limit your rights
As the New York Law Journal explains, recent changes in New York law have made digital data more readily admissible as evidence in court. Amendments to CPLR 4511 now provide that your location history, maps, photos or other digital content receive the rebuttable assumption of validity.
As our world adapts to greater reliance on digital data and fewer expectations of privacy, the laws evolve to reflect this.
But demands for digital searches and seizures are essentially no different demands over physical property. Without a warrant, police need consent to access your phone or digital data unless it is open and obvious to them in the exercise of their duties. Do not waive your rights under pressure or to show that you have nothing to hide.
Police can lawfully search your phone or computer in a few circumstances
A police officer may not search your phone or computer without a warrant unless you give consent — either actively by handing the device over or passively by failing to object to the search. You should say clearly and loudly that you do not consent to the search or seizure of your property. If necessary, repeat the message several times.
If the officers still search your property without consent, you should comply with any direct orders and never provoke conflict. If they are guilty of misconduct, it is better to argue for a dismissal of evidence later in court.
Always remember that if you leave your phone screen open and obvious to officers, they may use what they see to incriminate you, and they may use what they see as probable cause to demand a more extensive search. Keep your device screens locked whenever possible.
Similarly, someone else consenting to a search may compromise your digital data. For example, a roommate or guest could allow officers into your home, or your employer may give up digital data from your work computer or device. In some cases, police may even be able to obtain your data through your internet service provider or through a technology company whose services you use.
Evidence police collect in this case is generally admissible in court. But knowing your rights can help you avoid needlessly incriminating yourself.