303-837-9800

Stacks Image 1030
Stacks Image 1069

Blog

To view the archive, click here.

Search

Archives

​Can the Police Search My Phone? 2018 Update

In 2016, we posted about the government’s legal right and ability to search a suspect’s smartphone. At the time, the Supreme Court had established that police need a warrant to gain access to an arrestee’s phone, but even with warrants the police encountered practical difficulties accessing data due to phones’ security features. In the ongoing battle between privacy and security, the law is struggling to catch up with rapidly changing technology.

Recently, the Supreme Court took another significant step in defining the extent to which data from your cell phone can be accessed and used by the police. The court released Carpenter v. United States, a long-awaited opinion on whether a warrant is needed for the police to access cell phone location data. This data can be reconstructed to track the phone user’s movements over a period of time and determine whether they were at the scene of a crime. In a 5-4 opinion by Chief Justice Roberts, the court held that acquisition of cell-site records is a Fourth Amendment search, and that a warrant is required for law enforcement to retrieve such information.

While it might seem logical that cell phone location data implicates Fourth Amendment privacy concerns, the court could easily have swung the other way. Two major Supreme Court cases—Smith v. Maryland and United States v. Miller—established that there is no reasonable expectation of privacy in information that is voluntarily disclosed to a third party. In Smith, the court decided that placing a pen register (a device that records dialed numbers) on a phone was not a Fourth Amendment search because the phone company keeps a record of all dialed numbers anyway. In Miller, the 7-2 majority determined that the defendant had no protected privacy interest in his bank records, as he had knowingly entrusted the bank with that information. A warrant was not needed since there can be no reasonable expectation of privacy in information possessed, owned, and controlled only by a third party. That information belongs to the bank (or the phone company, in Smith), not the individual user.

These cases were the basis of Justice Kennedy’s dissent. Arguably, every user consents to the collection of location data by the cell phone company. These are not records that the phone’s owner herself creates—rather, the records are solely controlled by the company. However, the majority declined to extend Smithand Millerto cover cell-site data, and instead analogized to United States v. Jones, a 2012 case holding that attaching a GPS monitor to a car is a Fourth Amendment search, requiring the defendant’s consent or a warrant. The Carpentercourt found that since cell phones are such a pervasive and essential part of modern life, and there is no affirmative act of sharing that data with the cell phone company, retrieving the cell-site data was closer to the search in Jonesthan the facts in Smithand Miller. In other words: the police need a warrant to access cell phone data that shows where you were at a particular date and time.

Where does this leave us? First, as held in Riley v. California, the police need a warrant to unlock your phone and look at its contents. Now, they also need a warrant to access the cell phone’s data on your physical movements. These cases show that the law is slowly but surely catching up to the digital age. And, to guard against government intrusion while the legal system lags, companies like Apple are protecting their customers by refusing to program their devices with back doors that would allow law enforcement to hack into seized cell phones.

The key takeaway is this: if you are arrested, and you have not given the police consent to search your phone or access your cell-site data, a judge first has to issue a search warrant before law enforcement can look at that information. You have a constitutionally-recognized expectation of privacy in that data, and if the police access it without your consent or a warrant, it cannot be used against you in court.

Disclaimer: The information in this blog is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this blog should be construed as legal advice from The Eichner Law Firm or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this blog should act or refrain from acting on the basis of any information included in, or accessible through, this blog without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.