The Fourth Amendment to the U.S. Constitution protects you from unreasonable government searches and seizures, including your electronic and smart devices. Whether you’re being held under detainment or arrest, you still have protective rights.

To start, before speaking to any law enforcement official, you can state you do not wish to answer any questions without your attorney present. In many cases, law enforcement will ask you for permission to complete a search. This is the most common way legal searches are conducted, by people saying yes when the police ask them if they can search.   You do not have to say ‘yes’ to a search.

Even when under arrest, a search of your phone data can only be conducted under limited circumstances. Following an arrest, the police generally search the items on your person and in your pockets, as well as anything within your immediate control. This is within their rights.

If a phone or other digital equipment is found, they can only examine the physical aspects of the phone. For example, an officer may remove the phone from its case or remove the battery. In the event law enforcement believes evidence on the phone is likely to be immediately destroyed, they can search your devices without a warrant.

Contact our office to learn more about your privacy rights in Massachusetts.