Limits on smartphone seizure: the obligation for selection criteria

1. The facts

   The case stems from an investigation into corruption and bid-rigging, as reported by outlets such as Cassazione.net and Sistemi Penali. At the preliminary investigation stage, the Public Prosecutor ordered the evidentiary seizure of a suspect's smartphone to search for traces of illicit agreements. The Review Court of Nuoro initially confirmed the decree, considering the full seizure of the device legitimate for subsequent technical data extraction.\n\nThe suspect filed an appeal with the Supreme Court, denouncing the exploratory nature of the seizure. The defense argued that the order, by not indicating any limits on extractable data, allowed the Judicial Police to indiscriminately search the subject's private and professional life, far beyond the evidentiary needs related to the hypothesized crimes. The case thus reached the Sixth Criminal Section to evaluate the balance between investigative powers and privacy protection.

2. 

   The legal framework

   The legal core of the decision lies in Article 253 of the Code of Criminal Procedure, which governs evidentiary seizure, requiring a reasoned decree that identifies things relevant to the crime necessary for establishing facts. Article 254-bis of the same code supplements this for digital data, imposing measures to ensure conservation and integrity. At the constitutional level, Article 15 of the Constitution, which protects the secrecy of correspondence, and Article 8 of the ECHR regarding the right to respect for private life, are relevant.\n\nViolation of these rules results in the nullity of the decree for lack of reasoning regarding the proportionality of the means to the end. If the decree does not contain selection criteria, it is equated to a generalized search, leading to the annulment of the seizure and the obligation to return everything not strictly necessary for the investigation, as the power of selection cannot be entirely delegated to the Judicial Police.

3. What the case law says

   Supreme Court case law has progressively moved away from viewing the smartphone as a simple physical object, qualifying it instead as a digital archive containing a person's digital projection. In the past, high-level jurisprudence had already clarified that seizure cannot cover the entire device unless there is a specific justification for the need to examine every single file. The principle that data seizure must be targeted and proportionate has become established.\n\nWith the ruling in question, the judges reiterated that the Public Prosecutor must specify search parameters, such as keywords or timeframes, in the decree beforehand. The case law excludes the possibility of performing a total data extraction and then choosing what to use at leisure, as the very apprehension of irrelevant data constitutes an unlawful breach of privacy that must be avoided from the moment the order is executed.

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8. What it teaches professionals

   1. Immediately challenge the generic nature of the seizure decree if search parameters like timeframes or keywords are missing.
   2. Request, during the Review stage, a verification of the proportionality of the apprehension relative to the type of crime charged.
   3. Monitor that the Judicial Police do not proceed with the analysis of data outside the scope of the decree, raising inadmissibility exceptions for data acquired in violation of the imposed limits.
   4. Use the distinction between container (hardware) and content (data) to request the immediate return of the physical device once the targeted forensic copy is performed.

References: Articolo 253 c.p.p.Articolo 254-bis c.p.p.Articolo 15 CostituzioneArticolo 8 CEDU

Editorial oversight: Avv. Federico Papa·ICAMUpdated 2 November 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction