Section: Justice & right | Technology & AI Author: IN Reading Length: ~27 min Sources and further reading: 22 items Topics: mobile phone, criminal proceedings, wiretapping, data, encryption, privacy SEO / Working Title: Can the police search your cell phone?
Can the police search your cell phone? The question sounds simple until we notice that we are not comparing one thing. Locking the device may be legal and still require a different key to read the memory. The message on the phone is no longer a message that will come to him tomorrow. Judicial authorization to view content is not the technical ability to open the device. And the cloud visible from the phone without another lock is not the entire cloud account. The following text therefore does not applythe question of how to unlock the phone. It asks which of the three modes it is currently running and if it has its judicial filter.
1. The phone on the table after taking the item is not wiretapping. Not even free memory content.
There is a phone on the table. The police authority took it over after a summons to issue the thing, or took it away, or found it during a search. The public prosecutor in the preliminary proceedings is considering whether to go to the judge. The defense attorney doesn't just ask who is holding the phone. He asks what the state did with him after that. From 1 January 2026, a judge will consider a written authorization to inspect the contents of a secure portable communications device. An expert may be tasked with making a copy. Operator at this onethe scenes don't fit. That belongs to another question.
At first glance, it is a dispute about the sentence "the police searched my mobile phone". In fact, each describes a different legal key. One key opens the disposal of the thing: release, withdrawal, inspection. The second key opens the already stored contents of the secure portable device. The third key concerns future communications that are yet to pass through the network. A common word search deletes all three keys.
Therefore, they can all be partially correct and still introduce a common sentence. The police could have legally secured the phone, but that alone does not say whether they were allowed to read its contents. The court may have allowed inspection of the contents, but that alone does not say whether the device can actually be read. The phone may have received the message after securing, but that's not the same as the message that was already in it. And the operator may have operational data, but the secured device is not the network.
This article is therefore not a technical guide to working with phone lock, biometrics or encryption. It doesn't say how to hide the data. It only describes the modes in which the state treats the device, content and communication. That's a more useful question. It doesn't ask if "mobile phone is allowed". It asks which action took place and which filter belongs to it.
Securing your phone is not wiretapping. Data in memory is not a future call.
— Jiný Kontext
2. Mobile access has at least six layers
When a phone appears in criminal proceedings, there is not one simple situation. A string is created. Each article has a different purpose, a different boundary, and a different kind of error.
The first layer is a thing at the disposal of the state. The telephone can become a means of evidence by issuing the item, confiscating the item, seizing it during a house or personal search, or finding it during a search. § 78 and § 79 of the Criminal Code regulate the extradition and confiscation of a thing; after the amendment, the possibility to purchase a copy of the data instead of the carrier itself is also significant [1][13]. That is the basis. Without it, it is difficult to take the next step.
The second layer is already saved content. Until the end of 2025, this problem was interpreted in practice mainly through the difference between carrier and interception. The opinions of the Supreme State Prosecutor's Office were based on the fact that an order according to § 88 was not needed to find out the content already stored in the secured device [5][6]. From 1 January 2026, secure portable devices enabling two-way communication have their own § 113a regime [7][12].
The third layer is future communication. A call, message or other traffic that occurs after security is not just the content of the thing lying on the table. It's traffic on the road. The Supreme Court in the resolution of 15 December 2000, file no. 7 Tz 9/2000, separated delivered SMS from SMS that arrived later [3][4]. This section is not repealed by the amendment § 113a. § 88 remains in play for future communication.
The fourth layer is the constitutional ceiling. Art. 13 Documents protect the confidentiality of messages made by telephone [11]. The Constitutional Court already said for older telephony that protection does not only apply to the content of the call, but also to the numbers called, time, duration and base stations [8][9]. The smartphone adds to this photos, chats, location, notes, health apps, payment traces and work accounts. The intensity of the intervention is greater.
The fifth layer is encryption as a matter of fact. The law does not prohibit the investigation because the device is encrypted. Nor does it dictate success. The result can be simple: the permission exists, but the data is not readable. That's an evidence gap. It is not a technical manual.
The sixth layer is the connoisseur. The amendment envisages that if an expert is brought to the data pursuant to § 113a paragraph 1, the procedure is analogous to § 113a [7]. Copying without knowing the content and knowing the content itself are not the same thing. Here, too, it is important to know which layer we are currently in.
3. The best mode is the one whose key you can name
With the telephone in criminal proceedings, the biggest risk is a procedural shortcut. Not technical complexity. It is real, but legally we ask differently. Who did what action? At what point? With what permission? And against what content?
| A kind of failure | What does he look like? | How to test it | What is damage limitation |
|---|---|---|---|
| Interchange of three keys | "Mobile search" merges thing, memory and future traffic | Name § 78/79, § 113a and § 88 separately | The defense attorney asks about the act and the filter |
| Saved for future | A message delivered later is read as the subject matter | Separate the moment of securing from delivery | § 88 belongs to later operation |
| Permission as opening | The court stamp will be exchanged for factual legibility | Separate permissions from being able to read data | A cipher is a proof limit, not a guideline |
| Exception as license | The exemption from § 113a is read as a free cloud | Read the scope of the exception and the limit of additional security | The exception is not an infinite account |
| Phone as an operator | Network metadata is searched for in the device as in the network | Separate § 88a from the content of the device | The secured phone is not the operator |
Interpretation scheme: The same phone can be a thing, a carrier of already stored data and an end point of future communication. The legal regime is not determined by the brand of the phone, but by the action, time and content.
It does not follow that every procedural error automatically renders everything else illegal. It follows that legality cannot be assessed at all without a precise description. The sentence "the police had a phone" is a start. The sentence "the police read data in a secure portable device after 1 January 2026 without the § 113a regime" is already a legal problem.
4. Securing a thing is not reading data. Reading data is not eavesdropping on future communications.
The criminal code works with the case. The person may be asked to surrender it. In certain situations, the item may be confiscated. It can be secured during the inspection. This is an old procedural language. The phone fits into it as a material object that can have evidentiary value [1][13].
But the phone is not just an object. It is a data carrier and gateway to other services. Therefore, it is not enough to say that the thing has been secured. Seizure answers the question of why the device is in the hands of the state. It does not itself answer the question of whether the authority was allowed to read the contents of the secured device. This second step is specifically regulated by § 113a from 1 January 2026 [7][12].
The third step is different once again. Wiretapping according to § 88 is not reading what is already on the carrier. Aims at telecommunications traffic. The command to intercept and record telecommunications traffic has its own conditions, its own time frame and its own subsequent handling of the recording [2].
That's the crux of the whole thing. One act may legally precede another, but it cannot replace it. Legally confiscating your phone is not a blank check for reading secure content. Permission to view content is not permission to see what's going on tomorrow. And eavesdropping on future communications is not proof that previously stored data was read in the correct mode.
5. Data already stored are not messages that will run out after securing
The distinction between stored and future is not a new smartphone sensibility. SMS has already appeared in the Czech debate. In Resolution 7 Tz 9/2000, dated 15 December 2000, the Supreme Court addressed the difference between messages delivered to a secured phone and messages that arrived only after the seizure [3][4]. The first were on a carrier. The second was the telecommunications operation, which was still underway.
The opinion of the Supreme State Attorney's Office No. 4/2005 followed this cut for mobile phones [5]. Opinion 1/2015 extended it to other carriers and applications [6]. The essential sentence remains: later delivery is not the same as stored memory. It is a different moment and a different mode.
From 1 January 2026, the regime of already saved content for a special group of devices is changing. For a secure portable communication device, it is no longer enough to rely on the old idea of a carrier. § 113a comes into effect. But the time slice did not disappear. The amendment does not rewrite future communication on the content of the matter. What's yet to happen remains a problem of eavesdropping or other modes, not looking at memory.
In practice, this means a simple question: was the data in the device at the time of the security, or was it created afterwards? The answer won't solve everything, but without it the dispute will fall apart. The date and time are not a formality. There are boundaries between two legal worlds.
6. § 88 is not § 88a. The secured phone is not the operator.
§ 88 and § 88a look like technical siblings next to each other. They are not the same. § 88 refers to interception and recording of telecommunications traffic. According to the wording of the Criminal Code as of 2026, it works, among other things, with the threshold of the crime, the upper limit of which is at least eight years, and with other enumerated crimes; one order can last for a maximum of four months, although it can be repeatedly extended [2][20]. This number measures the cap per permit, not the automatic total watch time in each case.
§ 88a refers to data on telecommunications traffic. This is access to operational and location data, typically with the operator. Its threshold is different: an intentional crime with an upper limit of at least three years and other enumerated cases [1]. That's important, but it's primarily about the network and carrier, not the content of the secured phone.
The secured phone is not the operator. It has no obligation under the Electronic Communications Act to store data for the state. It is not even a network interface on which the operator ensures the intelligibility of the wiretapping [15]. The device may contain call or message history. Can show applications. May have local copies. But it does not legally turn into a telecommunications company just because it once communicated on the network.
This distinction protects accuracy. Regarding the future content of the communication, we look at § 88. When it comes to operational data with the operator, we look at § 88a and the Electronic Communications Act. As for the contents of a secure portable device, from 2026 we look at § 113a. One paragraph number should not replace another.
7. General inspection is not an inspection of the contents of the device
A search pursuant to Section 113 is a traditional act. It serves to clarify facts through direct observation. You can search for a place, thing, body, trace. This language makes sense with glass on the floor, a broken lock, or a phone as an object. But the content of the phone is not just the surface of the matter.
§ 113a therefore introduces a special regime. Targets a two-way portable device that is secured by the user and a copy of the data from such device [12]. The law also expressly provides for data in remote storage, if it is accessible from the device without overcoming additional security. That last sentence is a boundary, not an invitation.
The cloud visible from the phone without another lock is not the entire cloud account. The fact that the application shows some data does not give permission to bypass the additional protection of the remote service. It follows that the law needed to name a realistic situation: the content of the device may not only be on its chip. A modern phone often shows local and remote data at the same time.
There is no space for technical instructions here either. The legal text says when and to what extent the content can be viewed. It does not tell the reader how to defeat the security. This border is material and security. The article quotes her, does not promote it.
8. From 1 January 2026, the secure mobile phone has its own court filter
Act No. 270/2025 Coll. was published on 5 August 2025 and the relevant part takes effect on 1 January 2026 [7]. This date is not a decoration. It separates the legacy interpretation from the new process architecture. For a secure portable communication device, content viewing has an explicit judicial filter.
Default is the written permission of the judge. In preliminary proceedings, it is issued at the request of the public prosecutor. The authorization must be justified and the law works with subsidiarity: the intended purpose cannot be achieved otherwise, or it would be significantly more difficult [12]. This sentence is important precisely because the phone can contain much more than one piece of evidence.
According to the law, the authority is entitled to obtain access to the data [1]. This is a procedural sentence. It does not imply a claim to success. It does not mean an obligation to describe the method. It does not mean that the physical or cryptographic barrier will disappear. It means that the state may, under the terms of the law, seek access to data that falls under the regime.
§ 113a is therefore the legislator's answer to the density of the smartphone. It is not a cancellation of the option to secure the phone. Nor is it a confirmation of the old saying that a carrier is simply a carrier. It is a separate filter between the device as a thing and the device as a private archive.
9. Court authorization is not the technical ability to open the device
This is where the most confusion arises. Court permission sometimes reads like a magic key. He is not. The court deals with authorization. Device, account and security address the actual availability of data. The two planes meet but do not merge.
Encryption is a good example. If the device is encrypted and the content is unreadable, the law is not automatically turned off. A state can have a permit and encounter an evidentiary gap at the same time. Such an outcome is possible. It is not a prohibition to investigate. It is not a duty of success. And it is not a space for instructions on how to get around the obstacle.
Likewise, an unavailable cloud account is not the same as a locally available app. The law talks about data accessible from a secured device without bypassing additional security [12]. Where the next lock is is another problem. This text names it legally and does not elaborate technically.
Therefore, there is protocol between the permission and the result. It should be clear what extent the court allowed, which data was only copied, which was read and what remained inaccessible. Without this trace, it is difficult to know later whether the failure marked the actual limit or whether the action exceeded the original permission. This is where the technical sentence becomes a procedural question.
Therefore, the proper question is not whether the court "unlocked the phone." Not unlocked. The right question is whether the court authorized the inspection of the contents of the device, how it defined the scope, why it considered the condition of subsidiarity to be fulfilled and what happened when it turned out that the data was not legible.
10. The four permission exceptions are not a free cloud license
§ 113a does not only work with prior permission. It also contains exceptions. According to the background wording, there are four situations in odst. 5: consent of the authorized user, security during a search of the premises, an unknown user and the scene of the crime or an uncooperative victim [12][21]. Four letters are not one big free license.
Authorized user consent addresses one situation. Security during the inspection of the premises is different. Unknown user by another. The scene of the crime and the uncooperative victim are different. Every exception has a reason. If we mix them up, there is a procedural shortcut: because there is an exception somewhere, there is no need for permission anywhere. That's not how the law works.
Remote data must be read with particular care. An exception does not mean endless reading of the cloud account. The law itself limits cloud overreach to data accessible from the device without bypassing additional security [12]. This is exactly the moment when a legal sentence must remain a legal sentence. It should not be turned into a guide.
Exceptions should therefore not break the test. They should refine it. We ask which exception was used, why, to what extent and against which data. If the answer is just "there was an exception", it's not done. We're just getting started.
11. Immediacy without additional consent renders evidence useless
The law also allows for urgency. That's reasonable. Criminal proceedings sometimes do not wait for the ideal sequence of steps. But urgency is not a magic eraser. § 113a odst. 4 requires immediate additional consent according to the documents. If it does not come, the evidence obtained by the lookup is not used and the copy is destroyed [12].
This modification shows that the data copy is not a neutral shadow. It can contain extensive private life, work communications and third-party data. If additional consent is missing where the law requires it, one should not just wave one's hand. The law determines the consequence.
The same logic applies to user notification. The documents state that the law regulates the notification of permission, or the postponement of delivery for the purpose of proceedings [12]. So again: it's not just about whether the state can get the data. It is about whether the action is recorded, defined and later reviewable.
Urgency is therefore a test of discipline. It can explain why it went one way in the first place. He doesn't have to explain why no one asked later.
12. Consent to viewing the content is not consent to listening to the station
Consent appears in several places in criminal proceedings. That is why it is dangerous to talk about him in general. Consent of the authorized user with regard to the content according to § 113a odst. 5 letter a) is not the same as consent according to § 88, odst. 5, for wiretapping the station [2][12].
Other provisions. Another subject. Another time. When searching for content, we look at data on the device or a copy, or at limited remote data available. With wiretapping, we are looking at future telecommunications traffic. Agreeing with one does not automatically mean agreeing with the other.
Even less does it mean consent to operator data according to § 88a. There, the subject is access to traffic and location data, not the contents of the phone and not the wiretapping itself [1]. So consent is not a universal password. It is a legal title to a certain action.
In practice, it therefore pays to read the log slowly. Who agreed? With what? When? To what extent? Was it an authorized user? Did the consent relate to stored content, future communications, or operational data? Without these questions, the word consent is too smooth.
13. Art. 13 covers both content and dialed numbers. The smartphone is a denser hit than the push-button phone of the year 2000.
Art. 13 Documents protect the confidentiality of documents and other documents and reports submitted by telephone [11]. The Constitutional Court in the decision II. ÚS 502/2000 of 22. 1. 2001 said that the protection does not only apply to the content of the call, but also to data on called numbers, date, time, duration of the call and base stations [8]. Finding IV. ÚS 1556/07 of 3 August 2010 confirmed this line in the records of telecommunications traffic [9].
These decisions are not smartphone unlocking decisions. This is an important caveat. It related to traffic records and constitutional protection of telephone communication, not forensic access to today's equipment. Nevertheless, they show the principle: even data that is not the content of the call can be sensitive.
The smartphone is even thicker. Inside can be communication with family, work, photos, location, health regime, authentication applications, notes, browsing history, documents and access to other people's data. It's not just a box with a list of numbers. Therefore, the legal answer from 2025 is logical: a special filter for viewing content. Not a total collateral ban. Not saying that the phone is always the same as the house. But the recognition that it is not an ordinary thing either.
Pl. ÚS 3/09 recalls the role of the court in permitting interventions in preliminary proceedings [17]. It is not a mechanical stamp. It is supposed to be a pre-intervention check or a follow-up check where the law allows for urgency. The denser the intervention, the less an indefinite sentence is sufficient.
14. Encryption is an evidence gap. There is no prohibition to investigate. Nor the obligation of success.
Encryption is often discussed as a legal argument. In fact, it is a fact first. Data may be unreadable. The account may be unavailable. The device can be secured. It does not follow that the state may never investigate. It follows that permission and result are not the same thing.
This distinction protects both parties. It protects the state from the erroneous conclusion that a technical obstacle cancels the legal possibility of an action. And it protects individuals from the mistaken conclusion that legal permission automatically cancels all factual boundaries. The law provides the framework. Does not guarantee yield.
The Act on Electronic Communications in § 97 odst. 1 a 6 regulates the cooperation of the operator in wiretapping and intelligibility at the network interface [15]. That's another thing. It's about the network and operator, not the phone lock lying on the table. Transferring this responsibility to the user's device security would be another shortcut.
Therefore, this paragraph ends with the law. It doesn't start at bypassing the castle. If the result is "permission is, content is not readable", the legal language should say: evidence gap. No: here's the procedure.
15. The expert may copy without immediately familiarizing himself with the content
Digital evidence often needs an expert. Not because the right has disappeared, but because working with data requires keeping track, copy, integrity and description of steps. NSZ opinion 9/2001 dealt with the securing of computers during the search and issues of confidentiality [14]. Today's phone is a different subject, but the old question remains: how to separate securing the carrier from reading the content.
According to the documents, the amendment to § 105 stipulates that if an expert examines the data according to § 113a paragraph 1, the procedure is analogous to § 113a [7]. That is the exact process sentence. The connoisseur is not an outlaw figure. If it works with content, the corresponding mode is transferred to it.
The copy itself can be ambiguous. A copy can be taken without the authority or expert immediately familiarizing themselves with the contents. And you can familiarize yourself with the content. These steps should be separated in the protocol and in the considerations. Otherwise, copying turns into hidden reading.
The Supreme Court's Electronic Devices Press Release in T.J. Shows How Sensitive Data Release and Erasure Disputes Are Without Being an Unlocking Guide [16]. This is the correct position for this text as well. Electronic devices are not magical. They are evidence carriers with a very strong private overlap.
16. Questions to the defense attorney will say more than the phrase "they searched my cell phone"
The practice test does not start with the technique. It starts with paper, time and scope.
What needs to be tested
First, the act of securing must be determined. Was it a subpoena, seizure order, house search, personal search, or site inspection? If the basic action was flawed, the follow-up work with the content has a weak foundation. If the basic action was in order, the dispute moves on.
The second question is whether it is a portable device that allows two-way communication and is secured by the user. If so, from 1 January 2026, the default regime is § 113a. A free USB disk without a communication function can fall elsewhere, but even there the general limits of evidence do not disappear.
Before evaluating the legality of the collateral
For the permit, ask about documentation, justification and subsidiarity. It is not enough to say that the phone may contain evidence. It is necessary to know why the intended purpose could not be achieved otherwise or why it would be significantly more difficult [12]. Furthermore, it is necessary to know whether the exception from odst. 5 was used, and if so, which one and to what extent.
For urgency, ask if the additional consent came and what happened to the copy if it didn't. In the notification, ask whether the user was notified or why the delivery was delayed. These are not formalities. These are the points against which the intervention can be reviewed later.
Three mode tests
The first test is the matter: was the device legally secured? The second test is the stored content: was it § 113a, an exception, or an older regime with another carrier? The third test is future delivery: is the data at the time of provision separated from messages that arrived later? § 88 belongs to the third, not examining the content of the case.
This test is not "how to lock your phone better". It's not advice on how to hide data. It is a checklist for the legality of the regime. That's his strength. Converts a general sentence into specific questions that have a procedural answer.
17. The hidden load is one device that we read as one key
The phone tempts you to a simple sentence. It's on the table, it's got a screen, it's got data, it's got a signal. But the law does not see one thing in it. It sees the object, the storage medium, the communication endpoint, and sometimes the gateway to remote services. If we call it all a cell phone search, we lose the very thing that lawfulness is supposed to protect.
The claim of this article is narrower than it might seem. It doesn't say that the police can never secure the phone. It does not say that the contents of the phone are always inviolable. It does not say that encryption creates a legal prohibition against investigation. It says something more practical: three different regimes must not be mistaken for one.
As of September 2026, the search did not find a finding of the Constitutional Court that would explicitly decide the dispute as to whether the police may unlock a smartphone without a PIN. She didn't even find public statistics on how many phones are secured in the Czech Republic every year, how many fail to read them and how often the courts allow § 113a. Therefore, we do not know the normal length of these disputes, nor the average yield of examination in Czech practice. This is not a weakness of the text. It's the record limit. Making up a number would be worse than sayingthat is missing.
So the question is not whether the police can "search the cell phone". It is: which of the three keys did she just use, securing the thing, viewing already saved content, or listening to what is yet to come, and did that key have a forensic filter?
Court authorization is not the technical ability to open the device.
— Jiný Kontext
Related texts in this series
- How long does the operator keep the data… — the secured phone is not an operator.
- How does police mobile phone tracking work? — § 88a and the cell, not the contents of the memory.
- Can a person be located by phone number? — private "tracking" is not a police title.