The 4th Amendment to the United States Constitution is a very powerful thing, a liberty and a right that each of us possess. The 4th Amendment reads:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The government, through law enforcement, regularly searches “persons, houses, papers, and effects” of its citizens. The properties most commonly searched are houses, cars, and cell phones/cell phone records. Courts treat each of these differently so this post is meant to just address searches of your cell phone and/or your cell phone records. For prior posts about homes and cars, please click these links
Cell phones have become almost a extension of who we are today. Your phone probably goes with you every where you go and likely contains a lot of personal and private information about you, what you do, who you talk to, and more. Because of this, police love to access phones during criminal investigations. From your call logs to your location on a certain day at a certain time, phones can provide information that the police would not otherwise ever be able to know. How can the police get into your phone?
Seizure
The first question that most people have is whether or not the police can just take your phone. There is a difference between taking a phone and searching a phone. If the police believe your phone contains evidence of a crime, they can seize the phone as part of their collection of evidence in a case. They cannot search your phone with out either (1) your permission or (2) a search warrant.
Consent
If you give the police permission to search your phone, that is consent and the police can search it however they wish. You do not have to consent to a search of your phone, however. You have the right to refuse to allow the police to search your phone or to provide your fingerprint, facial profile, or password so that the police can access your phone. The police might seek a warrant if you refuse to allow them to search your phone. At this time, the police cannot seek a warrant for your password. The law is changing as to phone searches all the time, so a lawyer can help explain how the law might apply to any concerns you might have.
Judicial Warrant
For law enforcement to be able to search your phone outside of consent to search from you, the police must have a search warrant that sets out what probable cause they developed and then swore to a judge that they possess. That information will be in the body of the search warrant that the police will need to search your phone. The search warrant should detail what information the police are trying to get from your phone – do they want to perform a cell phone search and extract or “dump” the entire contents of your phone? Are they seeking location information from your cell phone provider? The search warrant will say. You may not be given a copy of the search warrant if your phone was seized, but a lawyer can help you get a copy and explain what type of search the police conducted.
Location Data
Your phone data often allows police to search beyond the contents of your phone. Cell site location data, which can be obtained either through your phone or through a search warrant to your cell phone company, allows the police to see where you were at a particular date and time. As an example of how the law changes as to phones, prior to 2018 some law enforcement agencies were obtaining this information without a search warrant. The Supreme Court put an end to that in 2018, holding that this was a Fourth Amendment violation. Now the police must get a search warrant to obtain this information.
The law as to cell phones is developing and changing all the time. If the police seize your phone or ask to search your phone, call a lawyer. You’ll want someone to lean on for advice quickly. A lawyer can help you understand what might happen next. Contact our team of criminal defense lawyers at KD Trial Lawyers.
Blog post written by Attorney Jennifer E. Wells
Contact Jennifer Wells today at (864) 660-0465 or email: jwells@spartanlaw.com
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