Your Phone and Digital Privacy Rights in New Jersey

Reviewed by William A. Proetta, Esq. · Updated October 2026

Police in New Jersey generally need a warrant to search the data on your phone, even after a lawful arrest. They also need a warrant based on probable cause to get your phone’s location from your carrier, unless an exception such as an emergency applies.

New Jersey goes further than federal law on records you hand to a phone company, bank or internet provider, which keep some protection under the State Constitution. It does not go further on passcodes. New Jersey’s Supreme Court has held that a court can order a person to reveal a phone passcode when police already have a search warrant and the State shows that the code exists and that the person controls the phone. For the full set of rights during police encounters, see our guide to your rights with police in New Jersey.

Can police search my phone if I’m arrested?

Not without a warrant, in most cases. In Riley v. California, 573 U.S. 373 (2014), the U.S. Supreme Court held that police generally need a warrant to search the data on a cell phone seized during an arrest. Its instruction to police was short: “get a warrant.” That rule is the federal floor, and it applies in New Jersey. An arrest does not, by itself, let officers scroll through your messages, photos or apps.

If an officer asks to look through your phone, you can say no. A calm, clear sentence is enough: “I do not consent to a search of my phone.” Do not grab the phone back or physically resist if an officer takes it anyway. Whether the search was lawful is a question for a judge later, through a motion to suppress evidence.

Do I have to give police my phone passcode in New Jersey?

You do not have to volunteer it, and you can decline if an officer simply asks. But a court can order you to disclose it in some circumstances, and on this issue New Jersey is not more protective than federal law.

In State v. Andrews, 243 N.J. 447 (2020), police first obtained search warrants for the defendant’s two iPhones. The State then asked a court to order him to disclose the passcodes. The New Jersey Supreme Court, by a 4–3 vote, held that neither the Fifth Amendment nor New Jersey’s own privilege against self-incrimination (N.J.S.A. 2A:84A-19 and N.J.R.E. 503) barred that order.

The majority’s reasoning had three steps:

1. Entering a passcode is “a testimonial act of production.” That normally brings the privilege into play.
2. The “foregone conclusion” exception applied. The State had already shown that the passcodes existed, that the defendant possessed and operated the phones, and that the passcodes would authenticate themselves by working. The Court called the act “one of surrender, not testimony.”
3. State law did not change the result. New Jersey’s privilege is usually read more broadly than the Fifth Amendment, but here ownership and control of the phones were undisputed, so the codes were not incriminating. The search warrants met the privacy concerns.

The three dissenting justices wrote that compelling “the disclosure of a person’s mental thoughts is anathema to fundamental principles.” Several other state high courts have refused to compel passcodes, and the U.S. Supreme Court has not decided the question. In New Jersey, though, Andrews is the law.

Andrews is not a rule that you must give your code to any officer who asks. In that case police had search warrants first, then obtained a separate court order compelling the codes. The trial court was to review the code before the State received it, the search was to take place in camera with defense counsel present, and it was limited to the phone and messaging apps. Asking for a lawyer and staying silent are covered on our page about police questioning and the right to remain silent.

Can police track my phone’s location without a warrant?

Not in New Jersey, outside an emergency. In State v. Earls, 214 N.J. 564 (2013), the New Jersey Supreme Court held that under N.J. Const. art. I, ¶ 7, people have a reasonable expectation of privacy in the location of their cell phones. As the Court put it, “cell phones are not meant to serve as tracking devices to locate their owners wherever they may be.” Police must get a warrant based on probable cause, unless an exception such as exigency or emergency aid applies.

Earls involved current location, not old records: while searching for the defendant, police had his carrier locate his phone. The warrant rule took effect 30 days after the July 18, 2013 decision.

Federal law moved in the same direction five years later. In Carpenter v. United States, 585 U.S. 296 (2018), the U.S. Supreme Court held that getting historical cell-site location records is a Fourth Amendment search that requires a warrant. Because Earls rests on the State Constitution, it does not depend on Carpenter‘s limits.

Can police get my phone, bank or internet records from the company?

Under federal law, phone toll records, bank records and internet subscriber records generally have no Fourth Amendment protection because you shared them with a business (the “third-party doctrine”). New Jersey has rejected that approach for these records. Protection does not always mean a warrant, though. For some records, a grand jury subpoena is enough.

Phone records. In State v. Hunt, 91 N.J. 338 (1982), the Court held that “the numbers dialed are private” and that the toll billing record “is a part of the privacy package.”

Bank records. In State v. McAllister, 184 N.J. 17 (2005), the Court held that people have a reasonable expectation of privacy in their bank records under the State Constitution, but that a grand jury subpoena based on relevancy satisfies that protection.

Internet provider records. In State v. Reid, 194 N.J. 386 (2008), the Court held that subscriber information given to an internet service provider is protected by art. I, ¶ 7, and that police may get it with a grand jury subpoena, without notifying the subscriber.

Can police wiretap my phone or read my messages as I send them?

Intercepting your calls or messages as they happen, without the consent of someone in the conversation, requires meeting the strict requirements of the New Jersey Wiretapping and Electronic Surveillance Control Act, which begins at N.J.S.A. 2A:156A-1. Our article on legal and illegal wiretapping in New Jersey explains how police obtain those orders.

The same heightened standard now applies to future social media messages. In Facebook, Inc. v. State, 254 N.J. 329 (2023), the State used a communications data warrant, which requires only probable cause, to make Facebook turn over a user’s future communications. The Court held that collecting messages in near-real time is “the functional equivalent of wiretap surveillance,” and that “a warrant based on probable cause is not enough.”

Can someone record my phone call without telling me?

Yes, if they are on the call. N.J.S.A. 2A:156A-4(d) makes an interception lawful “where such person is a party to the communication or one of the parties to the communication has given prior consent,” unless it is done “for the purpose of committing any criminal or tortious act.” New Jersey is a one-party consent state for conversations you take part in.

Assume that anyone you call or text may be recording or saving the conversation. Don’t discuss the facts of a case by phone, text or social media with anyone except your lawyer. And don’t delete posts, messages or files once you know about an investigation. Ask a lawyer first.

Using your own phone to record an officer is covered on our page about recording the police in New Jersey.

What if police searched my phone illegally?

The remedy is a motion to suppress. If a judge finds that police searched the phone, tracked its location or got your records without the warrant, order or subpoena the law requires, the evidence can be excluded. New Jersey does not recognize a federal-style “good faith” exception that would save evidence from a defective warrant. Our page on illegal search and seizure in New Jersey explains how these challenges work.

Talk to a Lawyer About a Phone Search

Digital evidence cases often turn on what process police used: a warrant, a court order, a subpoena or nothing at all. Call William Proetta Criminal Law at (201) 793-8018 for a free, confidential case review, or contact us.