Can the police record my phone calls or get copies of my texts, phone records, emails, and social media posts?

Actually, they can. Sometimes police will need a warrant. Other times, just a subpoena. And possibly, they won’t need anything but a computer and some time to search.

The information you put on social media such as Facebook, Twitter, LinkedIn, YouTube, and the like is basically public. While there are precautions you can take with some of those sites, like Facebook, to limit who is permitted to view your post, law enforcement can pretty easily access what you publish to those sites. And, once they do, they can use it against you.

Recording your phone calls and obtaining your phone records, which will often include the content of your text messages, is usually a bit more difficult. Law enforcement will issue a subpoena for those records, and the phone companies will comply. Once again, once obtained, the information will be admissible in court.

Some people think the phone companies record your phone calls. They do not. However, law enforcement can obtain a warrant to tap your telephone, which would allow them to record your phone conversations.

You should assume anything you post on social media, in your texts, and on the phone will be used against you later. Be very careful about the kinds of things you say. Let me be clear: I am very much in favor of free speech and feel you should be able to say whatever you want to say. But, if you do, it is possible someone might be listening. Just be careful not to say something you wouldn’t want the jury to hear.

In that regard, many criminal defense lawyers will not want to discuss your case over the telephone. While your conversations with your lawyer are privileged (meaning they cannot be used against you and should not be listened to by law enforcement), that doesn’t mean the police aren’t listening. Why give them the opportunity to hear your communications with your lawyer at all?

You should exercise the same caution when you attempt to solicit legal advice online. Some sites like AVVO and Lawyers.com have interfaces you can use to communicate with lawyers. I often see people providing the facts of their case and then asking for legal advice. While I have not seen it happen yet, it is certainly possible for law enforcement to obtain your statements and use them as evidence against you later.

Many people are in prison because of something they said. That’s not to say they weren’t guilty of a crime, but rather, that had they kept their mouths shut, they wouldn’t have ended up in prison. Please don’t commit crimes, but if you do: don’t talk about it with anyone besides your lawyer.

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