We keep a lot of personal information on our cell phones—from credit cards and bank accounts to personal photographs and videos; combined with an assortment of logins, calls and messages logs, GPS and location data tracking capabilities, internet searches, website visits, cell site location information, and others, our online records can say quite a lot about us. And if that information falls into the wrong hands, there is the potential that it could be used against us, especially if we are involved in a criminal case.
One part of the Miranda warning is that a suspect has the right to remain silent. But what about our technology? If we choose to remain silent, can our cell phones “speak” for us? Can the police turn over someone’s phone and online records in order to use them against us in state courts? And what about our wireless carriers or tech companies? Can they hand over records without our consent?
Can the Police Take Your Phone?
Based on the Fourth Amendment of the U.S. Constitution and Bill of Rights, police officers can’t just obtain your smartphone or any other technology devices without a search warrant, as it would be an illegal search. Because your phone is your property, they need a search warrant in order to take it from you or to look at it or your other devices’ data.
To get access to your data from your cellular network carrier, they also need to follow a warrant requirement in accordance with a Supreme Court ruling from 2018 (Carpenter vs. the US). These Supreme Court laws say that it doesn’t matter that the data records are held by a third party (the wireless carrier)—and that citizens still have a right to privacy when it comes to their digital data records.
It’s important to note that there are situations where police can conduct unlawful searches and seize your mobile phone or request your phone records without a search warrant. If officers believe your cell phone may provide evidence such as location data regarding child abduction, for example, or if they want your phone records because a bomb threat was called in, they do not need a search warrant. Basically, if they have probable cause or reasonable expectation of any type of evidence found, they can take your phone. Also, if you are arrested, they can take your cell phone or other personal electronic devices as key evidence of the crime committed.
The Carpenter ruling doesn’t mean that a law enforcement agency won’t ask to search your cell phone or won’t otherwise suggest that it is legal for them to seize your phone and access phone data. It’s within their right to ask to look at your cell phone, but unless police officers have a search warrant, you do not need to consent to a data search. Say no, and contact your Tampa defense lawyer in order to protect your constitutional rights in court.
And if they do have a search warrant, always check what is covered in the court order to obtain your phone. Rarely are law enforcement agencies given carte blanche. Make sure you understand what property the warrant covers and don’t provide them with anything else. Talk to your Tampa defense lawyer, who will help ensure your rights are being protected.
If your phone is searched or seized without a warrant, try to remember (or better yet, write down) the name of the officer and, if possible, their badge number.
Can Police Track Your Phone?
Your wireless carriers maintain data records based on your phone use. Such data records have been used to show motive or to illustrate the whereabouts of a defendant. As mentioned above, police are required to serve a warrant on a carrier in order to get access to this information and use it as evidence in court.
To get such a warrant, they must be able to show that the officers have probable cause to believe that an individual has committed a crime and that a personal cell phone will help to prove those criminal charges.
Also, keep in mind that while officers can’t legally get into your phone data without a warrant, they can use any probable information provided by others against you. For example, if you send messages containing inappropriate images to an underage individual and that individual provides those messages to the police, the meta-information or data on that image and text is a time-stamped record that can be used against you in a criminal proceeding.
Can You Be Compelled to Unlock Your Phone or Provide Your Password?
The police have your phone, now what? Can they make you give them the password or use your fingerprint to unlock your device?
In criminal law, the fifth amendment takes place in order for you to regain control of this situation. You cannot legally be forced or compelled to unlock your phone because it could be self-incriminating to do so. Even if they make it seem like you’d be helping yourself by unlocking your phone, it’s a good idea to refuse to do so until you speak with your lawyer.
However, just because you don’t unlock your phone doesn’t mean that law enforcement won’t be able to access the information on your device. In the digital age, police departments have gotten savvier, and at the federal level, the ability to break into password-protected phones continues to improve despite increased security measures from phone makers.
Federal Law Enforcement
So far, we have dealt with policing at the state level. However, it is important to note that federal law enforcement has a different set of rules they abide by. The main difference when it comes to phone records is that federal law enforcement does not need a warrant to gain access to your cell phone. Plus, cell phone wireless carriers don’t need to inform their customers if their records have been shared with federal courts agencies. If a carrier is complying with a subpoena, according to the Patriot Act, they don’t need to inform you.
Protect Yourself—Call Mike G Law
Our smartphones can feel like an extension of ourselves. It’s important to understand that while we can expect to have some sense of privacy on our personal devices, that privacy is limited. Unfortunately, this area of law is still being written and tested. Not every officer knows these laws or abides by them. It can be confusing, and they may think they have more authority than they do. To make sure that you’re protected, contact Mike G Law.
Mike G is committed to protecting the rights of the accused. Having spent decades as a prosecutor, he understands how law enforcement will push the limits in order to access a phone without a warrant and to make a case. He also knows that this area of digital law is in flux and constantly changing. Mike G stays on top of the law to better help his clients. He understands the tactics used by law enforcement who are desperate to make a charge stick, and he knows how to fight back.
Protect your rights— contact Mike G Law today to schedule a consultation.