On 5 April 2017, the Dutch Supreme Court ruled that the current legal framework in the Netherlands for searching a smartphone is insufficient.
Counsel for the accused had argued before the Supreme Court that the current legal framework was insufficient because searching a smartphone does not require a prior judicial warrant nor permission of the prosecutor. Instead, the authority to search a smartphone was considered to be included in the general authority of a police officer to seize an item (art. 94 et seq of the Dutch Code of Criminal Procedure). However, searching a smartphone results in a major intrusion of of a suspect’s privacy. After all, a smartphone contains lots of very personal data such as, for example, (chat) conversations with family and friends, photos, etc. All in all, smartphone technology has advanced to such an extent that, according to the defence, additional legal safeguards to safeguard privacy are required.
The Dutch Supreme Court agreed with the defence. It quashed the appeal judgement and remanded the case to the Amsterdam Court of Appeal for a fresh determination of the original appeal.
The Supreme Court ruled that the current legal framework is sufficient in cases where searching the smartphone results in a limited intrusion of the suspect’s privacy. This could be the case where only a limited amount of data is accessed. However, when the search of the smartphone is so extensive that it results in a more or less complete insight into specific aspects of the personal life of the user, the search can be unlawful. This will particularly be the case when all data on the smartphone is analysed. The Supreme Court therefore did not agree with the position of the Amsterdam Court of Appeal that art. 94 of the Dutch Code of Criminal Procedure constitutes a sufficient legal basis for a police officer to search a smartphone.