Take a moment to consider how many details of your public and private lives are accessible from your smart phone. These devices truly contain a mountain of sensitive information on each of us, some of which we created and some of which was harvested by the apps we use.
Would you willingly hand over your phone, unlocked, to law enforcement officials to look through? Even if you didn’t knowingly commit any crimes, this hypothetical scenario probably has you thinking twice about what information may be found on your phone.
Unfortunately, it is possible that even your local police department already has the technology it needs to get around encryption security and access the contents of your device. According to a recent New York Times story, at least 2,000 law enforcement agencies across all 50 states have such tools, and they are being utilized more often than most people realize. In the past five years, authorities have likely searched “hundreds of thousands of phones,” according to the article.
How is this information used?
Police are using cellphone searches to gather evidence in cases involving highly serious offenses like murder and rape. But they are also using it to expose low-level offenses like misdemeanor drug possession and shoplifting.
This raises important questions about whether law enforcement agencies are always obtaining warrants before breaking into phones, and if so, whether those warrants are narrow in scope or open-ended. If police can obtain a cellphone warrant on suspicion of drug activity but can access everything in a suspect’s cellphone, could they bring additional charges based on anything else they find? Where is the line?
Debate on law enforcement cellphone access rages on
In the 21st century, digital privacy concerns are and will continue to be the primary focus of debates over our Fourth Amendment protections against unreasonable search and seizure. Technology develops much faster than the laws meant to govern its use, and that often works to the advantage of law enforcement agencies.
In 2014, the U.S. Supreme Court ruled unanimously in Riley v. California that it is unconstitutional for law enforcement to conduct a warrantless search of a suspect’s cellphone during arrest. A warrant is required due to the treasure trove of personal information contained on a person’s phone.
In 2018, the nation’s highest court ruled (in a much closer decision) that police cannot access a suspect’s cellphone location information without a warrant. Both of these rulings clearly support the right of individuals to protect cellphone privacy. But law enforcement agencies continue to look for (and find) loopholes allowing them to conduct warrantless cellphone searches and location data searches in violation of the principle of the previous rulings.
Have you been a target?
If you were the subject of an investigation that ultimately led to criminal charges, it is important to determine how evidence against you was obtained and to question whether those searches were legal. If the legality is unclear, an experienced criminal defense attorney can help you petition the court to suppress any evidence obtained in violation of your Constitutional rights.