Cellular telephones have become such a major part of our daily lives that their use, storage and evidence capabilities and possession can be central to a criminal case.  In many ways, your cell phone can serve as an alibi (a defense) to a crime you did not commit.  At the same time, your phone's pictures, texts, videos, GPS location, apps (like social media, ride sharing, food delivery, etc.) can all yield evidence of a crime or evidence of innocence.  Even for unregistered cell phones, their ownership can be proven by showing possession/control over the phone, and/or by the phone's content (for example, a "selfie" posted to instagram).  Cell phones are increasingly used for investigative purposes in crimes involving: drugs, domestic violence, DUI, theft crimes, criminal conspiracies, and more.

Constitutional Safeguards
ALWAYS REFUSE SEARCHES!  NEVER CONSENT!  The Fourth Amendment safeguards that protect against unreasonable searches and seizures were drafted long before cell phones and other technology. Courts have grappled with warrant requirements, officer safety, and the evolution of cell phone technology. Today, cell phones are not just a method of communication, but a handheld computer that holds your monthly planner, notes, internet searches, call history, and much more. Cell phones hold much more information than a purse or a backpack, so when are police allowed to search your phone? Are there specific restrictions?

Generally, officers must obtain a search warrant before searching digital data. Because a cell phone is not generally used as a weapon, and there is no exigency once the phone is seized, cell phones do not usually fall under a warrant exception. However, the police may seize your phone, and then get a search warrant to unlock it and go through its contents. The police may search the phone if they believe that it may be used to place officers in additional danger. However, there are no bright line rules as to what is sufficient belief in terms of additional danger once the primary suspect is apprehended.

The decision came down in June 2014, where the Supreme Court ruled on cases out of Massachusetts and California. Criminal suspects in these states were convicted after a warrantless search of their cell phones (phone numbers, text messages, and photos) unveiled evidence that they were allegedly involved in drug and gang activity. This was a landmark decision, and the Supreme Court made it clear that the search of a cell phone does not fall within the exigent circumstances warrant exception. The Supreme Court did mention that circumstances such as child abduction or a bomb threat may justify search of a cell phone incident to arrest. If the officer believes there is an emergency that warrants the search of the arrestee’s phone without a warrant, then the state has the burden to prove that the emergency is sufficient to overcome privacy concerns.

Although the Supreme Court made it clear that the law views digital devices differently than physical property, it’s important to remember that if arrestees give consent to the officer to search the phone, then it is a lawful search. If you do not give consent, then the officer must obtain a warrant. Some arguments states have attempted include the notion that the search of a cell phone is necessary to prevent the destruction of evidence. Normally, an articulable belief that the arrestee will destroy evidence is sufficient to perform a search without a warrant. However, seizing the phone safeguards against the destruction of evidence. In addition, the Supreme Court found that removing the battery or placing the phone in a bag that blocks radio waves will prevent evidence being erased from a remote location.

States are also unable to overcome the fact that the search of a cell phone may also allow the police to search items on the iCloud, which would exceed the scope of the search in many situations. As technology continues to grow, so will the questions for courts, especially questions that require the balancing of privacy concerns and officer safety. Both are weighed heavily in the court’s analysis. Smartphones are becoming smarter, but privacy is at the core of protected interests, so it is unlikely that smartphone technology will evolve to fit into a search warrant exception.

If you or a loved one is involved in a criminal case involving evidence obtained from the use or possession of a cellular telephone, contact the Law Offices of Nicholas Loncar now for a FREE CONSULTATION.  213-375-3775.