Can the police just search my phone?
No, is the short answer! It follows from a recent Supreme Court ruling that permission from the magistrate judge is soon required before the police may search your phone. In doing so, the Supreme Court is reversing previous rulings.
How can the police access my phone?
The seizure of a telephone by the police falls under the rules of Article 94 of the Code of Criminal Procedure. According to this article, the police may seize items that may help to establish the truth or prove illegally obtained advantage.
Before the phone can be examined, it must first be unlocked. When the police want to gain access to a smartphone that is secured with an access code, they will usually ask if you will voluntarily share the code. It is important to note that you are not required to give the access code. The police may put some pressure on you to give the code, but they may not force you to do so.
However, in cases where the police want to access a phone and they do not have an access code, they can try to use other methods, such as biometric identification (fingerprints or facial recognition). In ECLI:NL:HR:2021:202, the Supreme Court ruled that in certain cases the police may use physical force to biometrically unlock a phone. This means the police can place your finger on the fingerprint scanner or hold the phone in front of your face to activate facial recognition. This is considered appropriate physical coercion and is legally permissible.
Once the police have access, are they allowed to search the phone as well?
Once they have access to the phone, are they allowed to search it? Until recently, the rule was that only in exceptional cases was authorization from the law commissioner required. In a March 18, 2025 ruling(ECLI:NL:HR:2025:409), the Supreme Court reversed this. In it, the Supreme Court ruled that the police may only search the phone without the permission of the examining magistrate, if it is a limited invasion of privacy. A limited intrusion, in addition to identifying the user of the phone, may include, for example, the police looking at what contacts the user of the phone made shortly beforehand.
If the investigation goes beyond that (and that is easily the case), a prior review by the examining magistrate is required for the further search of the phone. The examining magistrate must then assess whether the invasion of the user's privacy caused by the search is justified in part in light of the seriousness of the crime suspected and the importance of the investigation. If the investigation is allowed to take place, the examining magistrate will authorize it. In doing so, the examining magistrate may set further requirements for the investigation to be carried out.
What does this mean for you?
For litigants, this can have several consequences:
For pending cases: Should you be a defendant in an ongoing case, and your phone has been examined, chances are that the prosecution has committed a breach of form by examining your phone without prior permission from the magistrate judge. After all, before March 18, 2025, it was not known that this is required (in many cases). Formal omissions can result, among other things, in the judge having to exclude evidence or impose a reduced sentence.
For future cases: For the future, the Supreme Court's new line means that your privacy is better safeguarded.
Kyarah Janszen and Bram Horenblas