In today’s digital age, a cell phone or hand-held device is basically a sophisticated hand-held computer as well as a primary means of communication. Given this, there is general uniformity in the law that to search a cell phone or computer, the police have to have probable cause and a search warrant, just like your home.
This is guaranteed by state constitutions the Fourth Amendment to the United States Constitution and applies in all states,1 which is important if the state has a weak constitutional provision on search and seizure. The reason is clear, like your home, there is an expectation of privacy in the data in your cell or computer. Tech-oriented criminal defense attorneys frequently move to suppress data obtained from these devices if there is not a search warrant based on probable cause determined by a judge or magistrate.
Cell phone or hand-held devices, when used for communication or as a part of their operating system, “know” where you are as your signal moves. If these are properly coordinated or “triangulated”, your signal stored in cell phone tower data can reveal whether you were in given area at a given time. While this data is in some respect yours for a defense, the real question is whether a person has a reasonable expectation of privacy in this data that is protected from its use by a police without a search warrant?
Now in what is certain to be a far-reaching landmark case, the United States Supreme Court has agreed to decide2 the issue in Timothy Carpenter’s case, where this data was obtained without a search warrant and used in investigating him and ultimately led to his conviction for armed robberies and a 116-year prison sentence. This case pits your freedom in having the police track where you are without probable cause and your privacy against the needs of law enforcement. Where do you stand on this issue? The decision is about to be made for you.
What is important to do is follow this case and its decision so you can make a conscious choice how to use your cell phone. And if you become embroiled in a criminal case, take care in selecting a defense attorney. Choose wisely. The digital and scientific worlds no longer leave your fate the just a jury and good defense counsel’s ability to demonstrate reasonable doubt, but almost de facto determining some convictions (such as with DNA) for the jury.
As in all aspects of life, there are different attorneys to meet different legal needs. Complex criminal investigations, charges and trials now can be won or lost by the digital witness. Be aware. Remember no technology, like human memory, is infallible. Ciyou & Dixon, P.C. attorneys handle complex criminal matters across the state. This blog post is written as general information and is not specific legal advice or a solicitation for services. This is an advertisement.
- The protections of the Fourth Amendment apply to the states through the due process clause of the United States Constitution.
- This granting of hearing and deciding a case is called a grant of certiorari. This grant was issued on Monday, June 5, 2017. The case will be argued before SCOTUS in the fall.