All the time, arrestees and criminal suspects tell me that police have obtained their cellphone numbers, and sometime then called their cell numbers. Many times, police will go further and seize an arrestee’s or suspects cellphone.

WHAT TO DO WHEN POLICE OBTAIN YOUR CELLPHONE NUMBER

The law neither obligates a person to have a phone nor phone number, nor to provide a phone number to the police. However, it seems common for arrestees and criminal suspects to provide police with their cellphone numbers when asked.

Once a criminal arrestee or police suspect provides their cellphone number to the police, it is important for the arrestee or suspect to speak with a qualified lawyer before the police have an opportunity to reach the arrestee or suspect on their cellphone. The lawyer can talk with the suspect about whether to change the suspect’s cell number balanced against any aggravation of doing so and importance of the police having the contact information of the suspect’s lawyer instead,  and what to do if the police call or otherwise contact the arrestee or suspect. Of course, sometimes police obtain a suspect’s phone number from a third party, so we all must be prepared for what to do when the police unexpectedly call our cellphone.

Everyone has a Constitutional right not to speak with the police, and any arrestee or suspect who talks with the police about the charges or investigation against them — beyond simply providing their name — does so at their own peril.

Unfortunately, I have heard the heartbreaking story repeated time and again of police calling suspects on their cellphones and telling them of the importance of meeting the police at the station right away, only to spill the incriminatory beans to the police before ever learning about and calling me. Police realize that the sooner they urge and try to persuade a suspect to talk with the police, the less the chance will be that the suspect will first talk with a lawyer who will convince the suspect not to talk with the police.

Efforts by police to talk with suspects are best handled by the suspects’ getting off the phone and immediately contacting a qualified lawyer. Nobody has an obligation to do anything but terminate a call with the police. Diplomatic ways exist to terminate the call without giving the police bait to keep the conversation going, and I provide those means to suspects who consult with me. One such bait to the police is to say “I think maybe I first should speak with a lawyer.” If one makes such a mealy-mouthed reference to consulting a lawyer rather than a firm insistence on speaking with a lawyer or firm refusal to speak, the suspect has opened the door to the police trying to convince the suspect still to talk, for instance by responding: “Lawyers are expensive and hard to find this time of night. How about we talk first and we can see if a lawyer even becomes needed.” Another police retort to such mealy-mouthed responses can be: “Why get a lawyer if you have nothing to hide?” That is a variation on “Why refuse a search or to speak with us if you have nothing to hide?” Sorry, suspect, but every piece of data you give police — even if you think you have nothing to hide — can be damagingly misinterpreted and twisted, or even accurately used in damagingly unforeseen and unexpected ways. Silence is golden with police.

When a police suspect consults right away with a lawyer, the lawyer — if hired — can then contact the police officer (and any prosecutor involved), confirm that the suspect asserts his or her right to remain silent (and email, fax and mail/hand-deliver a letter to the police with the suspect’s signature confirming s/he asserts the right to remain silent), offer to discuss the matter as attorney-to-police, say that the lawyer expects that no criminal charges will be brought, and ask to be contacted in the event of any criminal charges so that the lawyer may coordinate with the suspect to turn the suspect in on any open arrest charge.

WHAT TO DO WHEN THE POLICE SEIZE YOUR CELLPHONE, AND ASK FOR YOUR PASSWORD

With drug and other arrests, police often seize cellphones and seek a search warrant to try to mine the extensive data on the cellphone. The police might even try to take advantage of the ongoing possibly incriminatory texts and emails coming into the cellphone. Do not consider it beyond the police even to use the seized cellphone to text and email others from that phone, masquerading as the phone’s owner, or to use the person’s cellphone number and email address to spoof the cell number and email address in contacting people whose contact information is saved on the cellphone.

Sadly, too many people do not plan for the day that their cellphone or computer gets seized, and do not regularly backup their data. Fortunately, when one recharges a cellphone to his or her laptop or desktop computer, such backup can take place automatically if the computer has been so programmed.

With one’s Fifth Amendment right to remain silent comes one’s Fifth Amendment right to refuse to provide their phone number and password (to their cellphones and computers) to the police. Police might threaten that refusal to provide a cellphone password will lead the police to potentially damage the cellphone’s data in the process of trying to find or bypass the password. So what? That is akin to a police threat to tear apart one’s car or home if the person does not consent to a search. It is at one’s peril to provide police their cellphone password or to consent to a search.

THE DIFFERENCE BETWEEN CLOSING THE ACCOUNT OF A SEIZED CELLPHONE, VERSUS REMOTELY DELETING THE CELLPHONE’S DATA

When the police seize one’s cellphone, should the cellphone’s owner close the cellphone account or change his or her cellphone number? Nobody has an obligation to have a phone, so nobody should have the obligation to keep open a cellphone account nor keep the same cellphone number. A qualified lawyer can advise further on the matter.

Today’s cellphones enable a phone’s owner to command the remote deletion of a cellphone’s data, in the event it gets lost or stolen. However, doing so with a cellphone seized by police risks being prosecuted for obstruction of justice. Furthermore, I take it that police computer forensics experts can salvage data that still remains after a data deletion effort.

As convenient and near-miraculous as are cellphones, possessing and using cellphones has tremendously disintegrated our privacy, starting with cellphones acting as GPS trackers of our every move, and enabling people to reach us wherever we go. Beware that police take full advantage of such privacy loss.

When police obtain your cellphone number or cellphone in your role as an arrestee or suspect, call a lawyer.