(402) 932-0290

YOUR PHONE, YOUR RIGHTS (OR ARE THEY YOUR RIGHTS?)

Search of Your Phone

The 4th Amendment to our US Constitution secures your citizen rights of protection of unreasonable search and seizure of your person (you) and your property (personal and real property).

In 2014, the United States Supreme Court made a landmark case decision in Riley v. California, 573 U.S. __ (2014), wherein the Court unanimously held that the warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional.

This generally means that without a validly signed warrant from a Judge, law enforcement personnel cannot review the contents of your phone (if unlocked) and further, cannot require to you unlock your phone for review.

However, if you consent or agree to the review of your phone by law enforcement you effectively have waived your right to assert the protection afforded by the Riley case discussed above.

Even in the situation in which a party has been validly arrested, law enforcement still cannot search your phone without a warrant. Before the holding under the Riley case, officers would often search phones “incident to the arrest” of a suspect, which is generally one of the exceptions to the warrant requirement under established 4th Amendment caselaw.

Tracking of Your Phone’s Location

The Supreme Court heard oral arguments on Wednesday, November 29, 2017 for the interesting case of Carpenter v. United States. Between December 2010 and March 2011, suspects in the Detroit, Michigan perpetrated armed robberies at RadioShack and T-Mobile stores in Michigan and Ohio.  Those parties stole cell phones from store customers and employees, including new phones from the stores’ inventories.

In April 2011, four of the suspects were captured and arrested (Carpenter was not among this group)). One party confessed and turned over his phone to the FBI. A judge granted order in accordance with the Stored Communications Act, which allowed the FBI’s request to obtain “transactional records.” This was NOT a warrant as required under the protection of the 4th Amendment. However, it was sufficient evidence under the Stored Communications Act which only requires “that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”

From the historical cell-tower and cell-site records, investigators determined that Carpenter’s phone communicated with cell towers at the time and within a two-mile radius of four robberies. He was eventually charged, arrested and later convicted by a jury of several counts of aiding and abetting, and robbery, among other weapons charges.

The issue before the Supreme Court is whether the officers should have obtained a search warrant in order to garner the particular cell phone location information.

The decision is expected to clarify the Fourth Amendment’s relation to the ability of law enforcement agencies to obtain smartphone data collected by third-party communication providers (such as your wireless provider).

Carpenter is certainly a case to keep your eyes on and is pertinent to our ever-advancing world of technology and communications.  A decision is expected prior to the end of the 2017-18 Supreme Court Term, which ends in June of 2018.