When the founders of our country wrote the Constitution and the Bill of Rights, photos did not exist, audio and video recordings did not exist, GPS did not exist, and everything written was on a physical piece of paper. As technology has developed over the past 250 years, Courts have sometimes struggled to take the 4th Amendment language, written in the late 18th century, and apply it to modern society. One more recent application is the cell phone.
It’s no wonder when investigating a crime police would want to access someone’s cell phone. All of our texts, photos, phone calls, and even our locations are recorded. Police can see where you are, everyone you associate with, and the nature of your association. This is truly unprecedented. In the late 1700’s, one would keep all of their papers, diaries, and letters in their home. Thus, protecting the home against warrantless search was sufficient to keep most of your communications private as well. Today, we carry everything with us all the time, in our pocket. Fortunately, courts have recognized this and have interpreted the 4th amendment to also protect the cell phone, although they have intentionally been slow to do so. In a 2010 case, City of Ontario v. Quon, the Court opined, “[t]he judiciary risks error by elaborating too full on the Fourth Amendment implications of emerging technology before its role in society has become clear.”
The Courts have now identified the role of cell phones in society and hold them to a high standard. Law enforcement is not allowed to access your cell phone without a warrant. They need to explain to a Judge why accessing your cell phone is so important to their investigation. If you are being investigated for shoplifting, then they will probably have a hard time doing that. However, if you are being investigated for dealing drugs, a crime which routinely involves cell phone communications, it is more likely that police will be able to obtain a warrant to search your phone. Every case varies and Judges issue the warrants on a case-by-case basis.
Police can, however, seize your phone without a warrant. Often, police will seize a suspect’s phone and hold it in their possession with the hopes of getting a warrant to search it later on. While this is frustrating, it is legal. An attorney can file a request with the Court asking the Court to give the State a deadline to obtain a warrant and download the contents of a phone so it can be returned to you. Without a specific Court order, the State will likely hold the phone until the case is resolved.
If you are a criminal defendant and you feel that your phone was improperly searched, or it is being held of an excessive amount of time, give us a call at (317) 870-0019 or email firstname.lastname@example.org and we can help you with your case. The return of a cell phone is relatively inconsequential when compared to the entire criminal case, but it is a preliminary step we can assist with.