Can the Police Search my Smartphone?

In 2022, your smartphone is like your best friend. It travels everywhere with you. You tell it all your most personal secrets. Studies show that Americans check their phones on average once every 10 minutes from the moment they wake up. This adds up to 96 times a day. Many of us are putting up numbers much higher than that. Unfortunately, law enforcement and government prosecutors have caught on to this fact and are now often utilizing cell phone data as a primary method on which to build criminal cases and locate suspects.

What Information Does My Phone Store?

Back in the day, phones were simple. They could make and receive calls and that was pretty much it. In 2022, however, you are essentially carrying around a small super-computer with you everywhere you go. Phones today are equipped with multiple cameras, SIM cards, accelerometers, cellular radios, GPS, and multiple software programs which are running at all times. They have solid-state storage built into them which keeps records of thousands of different types of data. As you can see, if the police think that you’re involved in any aspect of a criminal matter, they might be very interested in gaining access to your data when trying to solve crimes or build a case.

How Can Police Get Data Off My Smartphone?

There are four basic ways law enforcement can recover data off a smartphone:

Method #1 – The Simple Way

If your phone is unlocked or does not have a passcode, this will make law enforcement very happy. They can just go through your phone and take screenshots and send out the data to themselves on any messenger platform they wish. No forensic knowledge is required. They will choose what information they want and what they don’t want. This will not give them a very “deep dive” into your phone as many things which they are looking for may have been deleted. Deleted items cannot be obtained in this way. Oftentimes a simple search like this will be used to see your text messages, who you are calling, and possibly even notes which are stored in your phone. The evidence will not be reliably preserved beyond the screenshots which they capture and send to themselves.

Method #2 – Tricking the Phone

If law enforcement wants a slightly “deeper dive” into your phone, they can move onto the next method called “Logical Acquisition.” Law enforcement can plug your phone into special software and request data from the phone’s application program interface (API). This is a fancy way of saying that they will trick the phone into thinking it is communicating with iTunes or the Google Play Store for Android phones. The phone will then upload all the information onto what it thinks is a central operating system. It is basically just confusing the phone into uploading all its data onto the cloud, but instead of your own personal cloud all the data gets backed up onto law enforcement servers. Only limited information from apps will be given and nothing which is “deleted” in the storage will be backed-up. This can be done with free software online which is available to everyone.

Method #3 – Hacking the Phone

The most common way law enforcement gets information off someone’s smartphone is through what is called “Physical Acquisition.” This takes a lot longer than Logical Acquisition (Method #2). Police will use a high-powered and expensive machine which is only available to law enforcement to pull off not just the files on the phone, but as much deleted data as they can. This extraction process takes a very long time but will provide the police with an enormous amount of data not just on your phone, but deleted data as well which is still stored in your phone below the surface.

Method #4 – Taking Apart the Phone

The final method law enforcement uses to get information off a smartphone is to simply take apart the phone itself. This is called “direct acquisition.” They have a technician disassemble the Smartphone which allows them to hook up some of the individual parts of the phone to their own software and read the memory chips directly. This is a very expensive and difficult process but can still be accomplished even if the phone is shut down or damaged badly.

Can Police Force Me to Give Them My Phone Password?

In the wake of the San Bernadino mass shooting incident, we saw the FBI beg Apple to create a backdoor for law enforcement to crack their passwords. Apple refused - because if they created it for law enforcement, it would then be available to hackers as well.

Apple may not have cooperated but… people figured out how to do it anyway. Israeli company Cellebrite is the most widely used law enforcement “cracking” device alongside American Company Grayshift’s “GrayKey” technology. Both of these devices can cost upwards of $20,000 to $30,000 for a single unit. They can only be purchased by law enforcement agencies. The machines will put the phone in Airplane mode and then try millions of common passcodes in a (relatively) short period of time. Their success rate is very high, even though Smartphone operating systems are being upgraded with every new phone that comes out.

The more interesting question is: can law enforcement force you to give them your password or unlock your phone? In most instances, the answer is no. Most courts have ruled that your password is testimonial in nature and thus protected by the Fifth Amendment’s prohibition against self-incrimination.

However, while forcing you to input or say a numeric code or pattern out loud has been found to be protected, forcing you to engage in fingerprint and facial recognition has not. Courts have ruled that law enforcement may be able to force you to place your finger on a cell phone’s fingerprint identification or force your face to be held up to a phone’s facial recognition to open it. The best way to protect your phone is to actually have both a facial recognition password and a four-to-sixteen-digit numerical code.

When I Delete Data Off My Phone… Is It Really Deleted?

Unfortunately, no. Most things you manually “delete” are still stored in the phone itself. They are only deleted off the file-systems “master index” which can be thought of as the stuff you can “actually see” when you go through your phone. It can be thought of like a desktop with various icons on it. When you put certain icons in the trash bin on your computer, it is still on your computer it is just no longer in front of you. To fully get rid of it you need to “empty the trash.”

Similarly, deleted phone information is still secretly stored onto your device both internally and through something called “metadata.” It will be on your device until it is overwritten by another file. It may be hard for law enforcement to find and it won’t be neatly labeled, but it will still be present on the unused space on your hard drive.

Can Police Search My Social Media Like Facebook, Instagram or Snapchat?

The truth is that most of the information law enforcement often want is not stored on the phone itself. It is stored on third-party software or social media apps like Facebook (now “Meta”), Instagram and Snapchat. These companies all maintain their own data storage facilities which are not on the actual phone itself.

Law enforcement can simply serve a subpoena on these application providers. The information will be given to them in a Microsoft excel spreadsheet which will include data like who the sender was, what type of message it was, when it was received, and when it was viewed. Depending on the specific application used, whole chat logs will be given to law enforcement in an easily accessible spreadsheet format.

What is a Geofence Warrant?

A new powerful tool law enforcement has at their disposal is something called a “geo-fence” warrant. Judges are granting these more and more often. In 2016, the first geo-fence warrant was requested. In the whole year of 2016 there were only 982 geo-fence warrants sought by law enforcement. By 2020, that number went up to 11,554. Today, over 25% of data requests to Google are now geo-fence warrants. These warrants seek access to Google’s secret “sensor-vault” which tracks historical GPS data on nearly all phones. Other companies like Uber, Apple and Lyft also track historical GPS data and can be subject to geo-fence warrants.

The geo-fence warrant essentially allows the prosecutor to draw a box around a specific area along with a specific time frame and see all the active phones that were in the area at that time. This can be used to pinpoint almost anyone’s location at any time. If a person is suspected of committing a battery or a theft on a random day at a random location, law enforcement can now start with a list of all active cell phones in the area as suspects. Many constitutional rights groups are fighting against the use of these warrants, but for now they remain legal.

What is a Reverse Keyword Search?

Reverse keyword searches are just as scary as geo-fence warrants for anyone accused of a crime. This new type of warrant seeks access from search engines like Google by asking for users who looked up specific keywords such as the name of a victim. Google will then tender over all the users who searched the name or particular keyword or set of keywords during a certain time period, like “is it a crime if get into a DUI accident but fail to report an accident until the next day?”

This type of search tries to reverse engineer a set of suspects much like the geo-fence warrant does. It is a highly invasive type of warrant that many groups will likely be trying to challenge in the Supreme Court soon.

Are Calls from the Prison or Jail Being Recorded?

The answer is yes. Many people currently incarcerated in Illinois will not hesitate to speak openly with their loved ones, friends and family about the facts of their case. People will even talk to the alleged victims of their cases. It is not uncommon for a prosecutor to use recorded calls at trial which include threats made to victims, admissions to family members, or even instructions to those on the outside to intimidate a witness.

All jail calls from both the County Jails (Cook County Jail, Lake County Jail, Kane County Jail, McHenry County Jail, Will County Jail, DuPage and County Jail for instance) as well as the Illinois Department of Corrections are subject to recording and monitoring by the staff. The only calls not recorded and monitored are calls which are specially set up for attorneys to talk directly with their clients. It is hard to ensure that these calls are not being monitored by over-zealous staff members, so the safest way to communicate with your attorney is by having them visit the facility you are housed in.

Jail calls are even used as an independent basis to file new and separate charges. The safest practice if you are accused of a crime is to never discuss your case on the jail phone.

Hiring a Forensic Expert for Your Case

Some cases involving mobile forensics will require you to hire a forensics expert. This sometimes costs a lot of money, but it could mean that certain information discovered by police forensics might be thrown out. A situation might arise where a police forensics expert may testify against you and you may need your own expert to challenge their findings with, creating a “battle of the experts”. An experienced lawyer will be able to assist you in deciding what to do if you are faced with these complex legal questions relating to mobile forensics.

Speaking to Our Knowledgeable Criminal Legal Team

As technology becomes more and more complicated in our modern world, you need an equally experienced lawyer to protect you. If you were charged with an offense in which your phone was confiscated or investigated by law enforcement, do not hesitate to contact Mitchell S. Sexner & Associates LLC. For more than 30 years, we have represented clients in Chicago and across Illinois for a wide range of criminal cases, including those involving police monitoring. The government has an enormous number of resources at their disposal. We have the experience necessary to defend against whatever charges you may face. Call us at (312) 644-0444 or reach out to us online for a free consultation.