May 9, 2019
In less than a generation, cell phones have gone from being rare luxuries for the wealthy to almost universal. Cell phones now keep people connected to the world around us and to one another. These handheld devices contain huge amounts of sensitive and personal data, and password protection is used by most people to safeguard their privacy. However, if you have been arrested and charged with a crime, the contents of your phone may be at issue. Speak to an experienced criminal defense lawyer as soon as possible to understand your cell phone privacy rights. If you are in custody and law enforcement wants to search your phone, do not hand it over, even if you believe you are not guilty of any crime. Contact Khonsari Law Group in St. Petersburg right away instead.
The Fourth Amendment
Under the Fourth Amendment of the Bill of Rights, you are protected from unlawful search and seizure, and have the right to be secure in your, “persons, houses, papers, and effects, against unreasonable searches and seizures.”
The framers of the Constitution could not have imagined the world in 2019; however, their language, written in 1791, continues to protect our most important rights. It means that even though cell phones did not exist when the Fourth Amendment became law, law enforcement today cannot unlawfully seize and search your cell phone. That said, how you handle the request for access to your phone is very important, and may impact any case against you.
Probable Cause
In order to search your cellphone, law enforcement must almost always obtain a warrant. To do so, they must persuade a judge that there is probable cause to justify the search and seizure. Probable cause means there is a “certain level of suspicion of criminal activity.”
One feature of smartphone technology that is especially appealing to investigators is the ability to track recent locations. Where someone was, and when they were there, can be vital evidence for a criminal case. The recent U.S. Supreme Court ruling in the case Carpenter v. the United States supports the need for a warrant when it comes to searching cell phones. This ruling is especially applicable when it comes to searching location data.
Carpenter addressed the applicability of the “third party doctrine” in these types of cases. Under third party doctrine, if someone shares information with a third party, then they have a reduced expectation of privacy of the information. The third party in Carpenter was a cell phone provider. The Court did not apply the third party doctrine to the facts of this case, but instead ruled that a warrant is necessary to obtain a defendant’s location using cell phone towers from the provider.
How to Best Protect Your Rights
When someone is placed under arrest, the law requires an officer to read them their Miranda Rights. These rights warn that anything they say may be used against them in a court of law. Therefore, before answering any questions, it is always best to unequivocally ask to speak to an attorney.
A lawful search of your phone may ultimately occur. However, denying your consent to search your phone until there is a warrant will delay that search, and give you the opportunity to contact your criminal defense attorney. Furthermore, the exclusionary rule means any evidence obtained from your phone during an illegal search may not be admissible in court.
The facts are very important when search and seizure occurs. Be aware that a warrant is not necessary if:
- The subject consented to the search; or
- Law enforcement has probable cause to believe that incriminating evidence on your phone is under immediate threat of destruction.
Even if the situation requires a warrant, law enforcement can still conduct a physical search of a cell phone. This may involve removing the case and/or battery. An officer may also ask people with you for your password. It is unlikely that they will know this information, but you should know that sharing your password, even with trusted family and friends, is not a good idea because a person in a stressful situation is liable to disclose personal information.
Being arrested can be a frightening experience, and how you react can affect your future. It is critically important to get an advocate as soon as possible, and to not trust your defense to just anyone. Contact Khonsari Law Group today at (727) 269-5300 or online.
Call the Khonsari Law Group if Police Want to Search Your Phone
A cell phone is important personal property, and in many criminal cases, cell phones may provide key evidence for the prosecution.
Understanding when it is best to comply and when to assert your rights can be a fine line. Don’t let an officer intimidate you into handing over your cell phone. Ask to speak with your attorney first. Be respectful with the tone of your voice and in your manner, but stand firm about your rights under the Fourth Amendment, and your right to an attorney.
As a former prosecutor, criminal defense attorney Rohom Khonsari at Khonsari Law Group knows the strategies that prosecutors use to secure a conviction. That experience sets him apart. Additionally, the legal team at Khonsari Law Group are committed to serving clients who have had their Fourth Amendment rights violated. Mr. Khonsari deals with law enforcement for all aspects of his client’s case, including any eventual search of a cell phone.
As technology advances, Fourth Amendment rights may continue to be challenged in new and still unknown ways. For example, the Internet of Things (IoT) ties even more of our personal information to our cell phones, making the protection of private information from illegal search and seizures ever more imperative. Protect your Constitutional rights and schedule a free consultation today to learn if Khonsari Law Group can help you.
If you have been arrested for a crime and law enforcement want to search your cell phone, contact Khonsari Law Group today at (727) 269-5300 or online.