Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

“CAN A POLICE OFFICER SIMPLY TAKE MY SMART-PHONE AND SEARCH IT WITHOUT MY CONSENT AND WITHOUT A WARRANT?” (PART ONE)

We have discussed some of the myriad of issues which occur when defense counsel seeks to suppress evidence. In short, the defense brings a motion to prevent the prosecution from using evidence against a criminal defendant because it was discovered in violation of that defendant’s Constitutional Rights. It is an important tool to the defense and can often lead to the dismissal of the case altogether.

While this may anger some, that same “some” is often grateful for the efforts of counsel when it is their rights that were violated and the prosecution is only too happy to use that unconstitutionally discovered evidence against them.

But I digress. These are things you already know if you read this blog with any regularity.

I have also told you that the laws involving search and seizure can be confusing and are ever-changing. This is because of both the ever-changing society we share as well as the fact that laws, themselves, often change.

Recently, the United States Supreme Court handed down decisions which issues were brought about by new technology. As you may know, newer Apple I-Phones and I-Pads have an option which allows the owner to lock the I-Item and use the owner’s finger or thumb print as the only “key”. This, of course, makes it difficult for anyone other than the owner to open and use the I-Item without possession of the owner’s finger or thumb.

This is an extension of the problem which had already existed for police wishing to invade smartphones and tablets. There have been a number of privacy improvements which include expanded encryption and passcodes.

After all, we do live in an age wherein identity theft and cyber-theft is a valid concern. As a result, we take precautions to keep our information private. Often, the information is kept on our smart-phone these days.

But can the police, without a valid warrant, simply grab your phone and peruse the information inside? The United States Supreme Court has now answered that question.

While the police can search virtually anywhere with a valid search warrant, the issue is usually what they can do without such a warrant.

Not so long ago, police could search a cell phone whenever they liked. This was ended by the recent Supreme Court ruling that requires law enforcement to get a warrant before they can access the trove of evidence on such items.

In effect, the judges said that a mobile device is subject to the same privacy protections as a person’s home.

In their decision, the Supreme Court justices admitted that their ruling might make police work more difficult, but said that the right of privacy extends to the information that we carry with us on our mobile devices. They ruled that:

“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life,’ (Boyd, supra, at 630). The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.”

Attorney Sam’s Take On The Right To Privacy

“But, Sam, if the police can’t grab a suspect’s smart phone without a warrant, then the suspect is likely to get away with important evidence.”

Maybe, but the law protects a right to privacy. There is a trade off in terms of law and order. It is the same thing as if the sought evidence were at a person’s home. Without a warrant or one of the exceptions to the law, your right against unreasonable search and seizure prohibit the police from storming their way in.

We will likely see many more cases like this as the law catches up to technology. What about “the cloud”? What about when you text something to someone…fair game?

We will examine these issues as time goes by. First, though, let’s deal with another issue that is closely related to the smartphone and tablet issue. Namely, When must a citizen “voluntarily” aid the police in searching their device?

We will examine that question in Part Two.

To read the original stories upon which this blog is based please go to https://gigaom.com/2014/06/25/supreme-court-holds-that-privacy-rights-apply-to-cellphones-police-need-a-warrant-to-search/ and https://gigaom.com/2014/11/04/suspect-must-use-finger-to-unlock-phone-as-debate-shifts-over-device-privacy/

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