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Criminal Cases and Cell Phones: Another Court Confronts How the 18th Century Fourth Amendment Works With Modern Technology

Kish Law LLC

Criminal defense lawyers here in Atlanta, throughout Georgia and the rest of the Nation, whether in federal court or state court, all need to be aware of developments in the law, especially such hot topic areas like search and seizure. Many attorneys are able to either win, or at least put their client’s case in a better posture, by pointing out that the investigating officials either did or came close to going over the Constitutional line when obtaining incriminating evidence. I’ve written in earlier posts about how more and more courts are grappling with search and seizure rules when applying modern technology to the Fourth Amendment, the rule created by the Founders of our country in the 18th century.

Another of these rulings came out the other day, and was issued by the United States Court of Appeals for the First Circuit. That case held that when the police arrest a person, they generally cannot look through the person’s cell phone unless they first get a warrant. The First Circuit case applies to federal criminal matters that arise in Maine, New Hampshire, Massachusetts and Puerto Rico. An earlier ruling by the Seventh Circuit (which is governing authority in federal cases in Illinois, indiana and Wisconsin) came to a different result, holding that no warrant is needed. Look to see this issue going up the the United States Supreme Court at some point in the not too distant future.

In the First Circuit case, the police had probable cause to arrest the Defendant for being involved in a suspected drug deal. They then got his phone out of his pocket, and by pushing a couple of buttons, they then got information as to his home address. They went to the residence, put officers inside to make sure his wife did not destroy anything, and then got a warrant to search the house. In the house they found lots of drugs and a weapon, leading to the Defendant’s ultimate 22-year prison sentence. He appealed, arguing that the search of his phone was illegal, and that illegality led to the identification of his house and search there. The First Circuit agreed and reversed his conviction.

The Fourth Amendment says that there shall not be any search unless based on probable cause and after a judge has issued a warrant. We all know that this rule is riddled with holes like Swiss cheese. One such hole is the “search incident to arrest” exception to the Fourth Amendment. This rule says that potential danger to the police and the need to look for evidence before it can be destroyed are reasons why law enforcement officials are permitted to engage in a warrantless search of the arrested person, his belongings and anything he has near him. The cases say that the cops can look through wallets, purses, and the like, but cannot get into boxes or vehicles that are some distance away from the arrested person.

Enter the modern cell phone, which is no bigger than wallets and purses, and oftentimes much smaller. However, more and more courts are recognizing that size ain’t everything, for as we all know, our cell phones are often repositories of extraordinary amounts of information, much of which is highly confidential and personal. The prosecutors in the First Circuit case argued that a cell phone is no bigger than a wallet, and the same search rules should therefore apply. However, the First Circuit noted that the “eighty-five percent of Americans who own cell phones and who use the devices to do much more than make phone calls” would probably be surprised to know that their government equated these technological marvels with a wallet. The First Circuit instead recognized that cell phones are actually compact computers, with vast storage capability, and that most folks keep an array of private information on these devices. As a result, the court said that the wallet analogy does not work. If the police want to look through the cell phone of an arrested person, they need to get a warrant.

Now, a caveat. The First Circuit sits in Boston, where the Marathon bombing still is causing shockwaves throughout the community. The First Circuit therefore noted that its ruling did not apply to “exigent circumstances” cases, which are situations in which an emergency situation requires immediate law enforcement action with no need to first get a warrant from a judge. “We assume that the exigent circumstances exception would allow the police to conduct an immediate, warrantless search of a cell phone’s data where they have probable cause to believe that the phone contains evidence of a crime, as well as a compelling need to act quickly that makes it impracticable for them to obtain a warrant — for example, where the phone is believed to contain evidence necessary to locate a kidnapped child or to investigate a bombing plot or incident.”

This is an important case. We will keep track of further developments, so we can use this and other recent cases to help clients we represent.

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