No Such Thing as a Consensual Search of a Phone
Even if the police “convince” a suspect to allow his or her phone to be searched, this “consent” is baseless, and evidence obtained in a search without a warrant will be disqualified.
Searching a smart phone is different than any other search. We save vast amounts of personal information on our smart phones, including correspondences with family members and friends, as well as sensitive medical information. We also have access to many additional sources of information from our phones, including bank accounts, medical files, and dating apps. As such, searching a phone is a gross violation of personal space.
Searching a phone is also a highly sensitive matter; legally, such a search may only be conducted following a court hearing, it is not enough to obtain the “consent” of the person by taking advantage of the power dynamic between investigators and the individual being questioned. The police tend to obtain “consent” from the person being investigated to search their smart phone, and by doing so bypass the need for a warrant. This practice is simply illegal.
For more, see the position paper on a case that ACRI joined: A military court rejected evidence obtained by the Israel Defense Forces Criminal Investigations Department through a search conducted on a mobile phone without a warrant. The Criminal Investigations Department and the Attorney General appealed the decision, and ACRI filed an opinion on the case. The Supreme Court ultimately decided not to review the appeal, as the circumstances of the incident demonstrated that there was no consent to search the phone, and the fundamental question therefore became theoretical.