That is, should law enforcement be allowed to scour your cell phone without a warrant in the course of a criminal investigation?
Our Birmingham criminal defense lawyers believe the answer is a firm “No.”
The courts are conflicted, a controversy that was profiled recently by The New York Times.
Ten years ago, this was not a discussion we were having, as many people were still carrying around pagers and making calls from public payphones. Today, you would be hard-pressed to find someone without a basic cell phone. Most people have smart phones that provide access to not only calls, but text messages, e-mail, social networking sites, personal notes and calendars.
This is exactly why the cops want their hands on it. The problem is that there is so much personal information that may be – and often is – entirely irrelevant to the investigation. There is ample opportunity to abuse this access and authority if legislation or case law does not make it illegal for officers to tap into it without a warrant spelling out exactly what they are allowed to see.
In Rhode Island recently, a murder conviction was tossed on the basis that police who searched the defendant’s cell phone did so without a search warrant.
Then in Washington, you had a judge who likened text messages to voice mail messages, which he reasoned can be overheard by anyone and therefore aren’t protected by privacy laws set forth by the state.
In Ohio, a judge ruled that police had to have a warrant to search cellphone data because unlike a simple piece of paper, the device contains an enormous amount of private information.
The California Supreme Court, meanwhile, determined that law enforcement were allowed to search the contents of a cell phone, so long as the device was present with the suspect at the time of the arrest. (And let’s be honest – who doesn’t carry their cell phone with them at all times?)
And then in Louisiana, a federal appeals court is still looking into whether the location records that are archived in smartphones are worthy of privacy protection, or whether they should be classified as business records that are the property of phone companies.
The bottom line is, there is no agreement about whether text messages warrant a reasonable expectation of privacy, in which case Fourth Amendment protections would come into play.
A Senate committee recently considered a few changes to the Electronic Communications Privacy Act, which is the law that dictates how government authorities are allowed to monitor your digital communications. Some judges have ruled that certain kinds of cell phone data may be subject to a warrantless search.
The amendment being considered would prohibit police from sifting through e-mails, no matter how old, without a warrant. As it stands now, police can do so without any warrant at all, so long as the e-mails are six months or older.
Our Birmingham criminal defense lawyers believe that in addition to this being a privacy issue, the blockage of measures that would allow police to search cellphones without warrants is a strategic one. It won’t necessarily bar police from looking through your phone if they really want. But if warrants are required, there will be more of an opportunity to challenge that evidence and request that it be kept out of the earshot of the jury.
Courts Divided Over Searches of Cellphones, Nov. 25, 2012, By Somini Sengupta, The New York Times