By: Kara L. Carreras
Recently, the United States Supreme Court handed down a decision related to searches and seizure of cell phones and their data contents. With the ever-changing technological advances related to cell phones and wireless technology what is considered private?
The Fourth Amendment of the U.S. and Texas Constitution afford people the right to be protected from unreasonable searches and seizures. That means that searches without a warrant are generally illegal. So how do you determine what is a reasonable and unreasonable search?
To secure a warrant, police need to have knowledge of facts and circumstances that reasonably lead them to believe a person has committed a crime. For example, an officer sees or smells marijuana, or the person admits he has marijuana are facts and circumstances that would lead a reasonable person to believe that the crime of possession of marijuana has been committed. That is an easy example but that is the basics of probable cause.
But what about your cell phone? Can police just seize that phone and comb through your personal content, contacts, etc.? The government has argued several times that cell phone content and digital history should be subject to many of the warrant exceptions of the Fourth Amendment, but over and over we have seen the Supreme Court and Texas Courts uphold the privacy interests of citizens in their digital content.
Remember, if you consent to a search of your cell phone, computer or any other device, the police do not need a warrant. Anything the police find on your phone, computer etc. can and will be used against you when you consent.
Sometimes, when you don’t consent to a search the police will try to gather the information in other ways. Police can subpoena cell phone records to see what numbers a person dialed or texted. These are considered third party records that police can obtain from businesses that keep the records for business purposes and are In 1979 the Supreme Court handled a case called Smith v. Maryland where it was recognized that numbers dialed on a phone not expected to be private and therefore a warrant is not needed. The court noted that there is potentially a privacy interested in the actual conversation, but not the phone number itself.
However, when someone is arrested with their cell phone in their possession the government has sought to seize those cell phones and search the digital data under the guise of a “search incident to lawful arrest” (an exception to the warrant requirement). The government in Riley v. California and U.S. v Wurie seized cell phones of two arrested persons and searched inside their phones and discovered evidence of gang involvement and one of the cases led police to an apartment where guns and other contraband were found. In an easy 9-0 decision, the Supreme Court of the United States laid down the rule that contents of a digital cell device are subject to warrant requirement. Privacy interest of citizens in their digital contents is so great that a search is considered unreasonable without a warrant.
In June 2018, the U.S. Supreme Court in a 5-4 decision, went further to protect the privacy of citizens in Carpenter v. U.S.. This case involved a person accused and convicted of robbing several stores in different states. The government subpoenaed cell phone site data from the defendant’s cell phone company. These records provided cell site location information-CSLI (exact location) of the defendant for over 120-day period. The government was able to use those records to track defendant’s movements and align them with the times the robberies were committed. The Supreme Court noted that there is a reasonable expectation of privacy of citizens in their physical movements and cell site location records that can potentially go back as far as 5 years are something that should be protected against unreasonable seizures.
The Supreme Court has left open the possibility that digital contents can be subject to the warrant exception of exigent circumstances. In a life-threatening situation that calls for immediate action to save lives or prevent further harm, a digital search without a warrant may be justified. The Court noted that the exceptions could apply on a case-by-case basis.