The judicial police may seize the smartphone in cases of particular urgency

Judicial police are entitled to seizure of smartphones, and of electronic devices in general, even in the absence of prior intervention by the judicial authority. This is the conclusion reached by the Supreme Court of Cassation, with the sentence of the Third Criminal Section no. 2218 of 2026, clarifying its compatibility also with the latest rulings of the European Court of Justice.

The Court of Cassation recalls, first of all, that the Code of Criminal Procedure generally authorises the judicial police, in conditions of particular urgency, in order to avoid alterations, dispersions or modifications, to proceed, prior to the intervention of the judicial authority, to access data, information and computer programmes, computer or telematic systems, and to extract copies thereof.

However, the European Court of Justice, in its judgment of 2024 in Case C-548/21, declared the compatibility of national legislation granting the competent authorities the possibility to access data contained in a mobile phone, for the prevention, investigation, detection and prosecution of criminal offences in general, if this legislation, in particular, makes the exercise of this possibility, except in duly substantiated cases of urgency, subject to prior control by a judge or an independent administrative body. In particular, the ruling expressly refers to the 'possibility of accessing the data contained in a mobile phone' and does not make precise references to the entire category of all electronic devices. It does not, however, exclude access 'to the data contained in a mobile phone' when there are 'duly substantiated cases of urgency', provided that there is subsequent control.

For the Court of Cassation, therefore, 'taking into account the development of the case law of the Court of Justice and the provisions of Article 354 of the Code of Criminal Procedure, it seems reasonable to conclude that the judicial police may legitimately access the contents of an electronic device, without prior authorisation by a judge, in cases of urgency and where the possibility of an effective control on such activity within a short timeframe by a judge is envisaged'.

Moreover, there would also be no conflict with the orientation of the same Supreme Court that, downstream of the ruling of the EU Court, considers the authorisation of the judge to be necessary: in fact, if the latter is missing, we are not faced with a case of unusability of the evidence, but rather of nullity of the act.