Court: ‘Police may search smartphone of a suspect of minor crime’

Searching the mobile phone of a suspect for personal or other relevant information is not necessarily limited to the fight against serious crimes. Even if it concerns a smaller misdemeanor, a police officer is allowed to check the suspect’s phone.

That’s the verdict of the Court of Justice of the European Union (CJEU).

This case was launched by the Austrian police, who seized the mobile phone of a man after a police officer found 85 grams of drugs during a narcotics check. The officer tried to unlock the suspect’s phone to see what data was stored on the device, but to no avail.

Since the police officer had no authorization from the Public Prosecutor’s Office or a court to try to unlock his phone, the suspect objected to the seizure of his device before an Austrian court.

In turn, the judge turned to the Court of Justice of the European Union for legal advice to see whether the way the police officer acted was in accordance with EU law.

The Court of Justice states that access by the police to the data stored on a mobile phone may be considered as interference with the fundamental rights of a data subject, because the device may contain sensitive data.

“However, to consider that only the fight against serious crime is capable of justifying access to data contained in a mobile telephone would unduly limit the investigative powers of the competent authorities. This would result in an increased risk of impunity for criminal offenses in general and therefore in a risk for the creation of an area of freedom, security and justice in the European Union,” the Court rules.

But according to the CJEU, certain conditions must be in place before a police officer can confiscate and search a suspect’s mobile phone.

First of all, the national legislature must define ‘with sufficient precision’ what factors are to be taken into account before interfering with someone’s private life and data.

Secondly, an independent third-party, like a court or administrative authority, must review the case and approve the search. There must be a balance between the needs of the investigation of the device on one hand, and the fundamental rights of the suspect on the other hand.

Lastly, a suspect must be informed on what grounds a police officer is authorized to access his or her data, as soon as the communication of that information is no longer liable to jeopardize the investigations.