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Search of Different Cellphone Seven Years After Alleged Crime Called Ok by Federal Court of Appeals

Kish Law LLC

Federal criminal cases are no different than cases brought in state courts such as Georgia, Florida or Alabama. The explosion of technology requires courts to balance the needs of law enforcement with the protections for individual liberty enshrined in our Constitution. Sometimes, when the suspect is investigated for a “bad” crime like targeting minors for sex, the courts simply ignore that the protections for individual liberty apply to everybody equally. In an opinion issued today by the United States Court of Appeals here in Atlanta several blocks from our offices, that court permitted the search of a cellphone that had no connection to the alleged crime from seven years earlier. The case is U.S. v. Mathis and can be read here.

In 2004, the Defendant supposedly got a then 14-year old to have sex. Remember, this was 2004, a veritable lifetime ago in the world of cellphones and communication technology. Seven long years later, the young person was by then 21, and decided to tell the police about his encounter with the Defendant back in 2004. The young person said that back in 2004 he and the Defendant had phone calls and exchanged text messages using the Defendant’s phone. Now, here’s the important part: the police knew that the Defendant, like just about everybody else, had changed cellphones in the intervening seven years.

The police applied for a search warrant, asking permission to seize and then look through the Defendant’s current cellphone. But they conveniently forgot to tell the Judge that the phone the Defendant carried every day was not the phone he used seven years ago back in 2004. The judge issued the warrant, they found evidence of further crimes, and that evidence was used to convict the Defendant, who got a mere 40 years in prison.

The Defendant’s lawyer did what we do in lots of cases: filing a motion to suppress the search of the cell phone. The lawyer pointed out that the police never told the judge that the cell phone was not the same one used seven years earlier, that the victim never said that sexually explicit conversations took place on that phone by call or text, and that in any event there was little chance that someone carrying a cell phone seven years later would be keeping evidence of a sexual liaison that happened so long ago.

The Court of Appeals rejected these arguments, with a series of fairly shocking rulings. First, they said it made no difference that the search was not for the same phone used seven years ago, because all that was needed was a connection between the current phone and the Defendant. In other words, if someone tells the police that you did something a decade ago, your current phone (or computer or tablet, or social media page) is fair game for a government search. Second, the appellate court resorted to the “good faith” excuse, which basically says we won’t blame the police even though they broke the law in conducting a search and seizure.

Readers know that I regularly blather on about how the Fourth Amendment, which was written in the Eighteenth Century, is being applied in a modern world that the creators of our Constitution likely did not foresee. However, I have a hunch that the folks who created this protection against government over-reaching would not think that an allegation of an old crime would permit the police to scour through a modern cell phone, with its treasure trove of personal information. This ruling is unfortunate.

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