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Police Searches and Phone Information Privacy

The law regarding criminal cases that involve privacy and technology devices like cell phones is complicated and evolving. As a Sacramento area criminal defense lawyer with 25 years of experience, I can provide you with the experienced representation you need to defend your rights.

Supreme Court Rulings on Police Access to Cell Phone Data

In 2014 the United States Supreme Court ruled that because of the personal nature of information contained on cell phones, and its large quantity, that information is protected from examination by law enforcement. Modern smart phones are not just phones. They are also cameras, address books, maps, and written and pictorial diaries of people’s everyday lives and most personal thoughts and actions. Law enforcement has argued that they need to access this information when a crime has allegedly been committed to prevent the destruction of potentially relevant evidence. The Court, however, ruled in Riley v. California and United States v. Wurie that police must get a warrant before searching a phone’s contents.

Keep in mind that this does not mean that police are completely prohibited from searching your phone. If you have been arrested, your phone can still be collected as evidence. Moreover, law enforcement can also take actions to prevent information on the phone from being erased. These measures include turning the device off, wrapping it in aluminum foil, and removing the battery. If a warrant is obtained, then law enforcement can attempt to unlock the phone, though you have the right to not give them the passcode because doing so could violate your protection against self-incrimination. The Supreme Court did leave open for police the ability to access phone information without a warrant if emergency - or exigent - circumstances exist. What that means is if police believe that there is an immediate danger of evidence being destroyed or of there being a danger that people could be hurt, then they can attempt to unlock the phone to examine its contents. All of this also seems to apply to computers, tablets, and other electronic devices as well.

Potential Changes to phone privacy rules

A potential challenge to these rules that in most instances prevent the police from looking at the private information you keep on your phone will soon be heard by the Supreme Court. The question is whether police can go to telecommunications companies and get copies of records of your location based on your cell phone usage. The way this works is that cell phones communicate with nearby cell towers many times a minute to check for calls and texts. These electronic interactions have the consequence of recording where you are at all times. In the case before the Court, Carpenter v. United States, federal officers got this information without first getting a search warrant. Instead they relied on a rule in federal law that allows them to search electronic records when there is a “reasonable suspicion” that a crime has occurred. Carpenter and his attorneys are arguing that obtaining that information without a warrant was a violation of his Fourth Amendment rights.

Creating this information from the everyday actions of using phones to communicate with others should not give law enforcement the right to seize those records without going through the constitutionally mandated process of getting a search warrant. These records of location are just as personal as the materials we have in our houses and cars. The Supreme Court’s decision in this important case will be summarized here when in comes out later in the Court’s term.

Legal Representation in Privacy Cases

If you are arrested, keep in mind that you cannot be forced to give up your passcode. It is your right to decline sharing this information. However, the police can still take your phone as evidence and then attempt to get a search warrant. But even in this case you cannot be compelled to tell them the code because that would violate your right against self-incrimination. The police can then decide if they want to use a technology expert to try to open the phone.

In any case involving privacy and technology, it is in your interest to have strong legal representation. With my extensive experience as a Sacramento region defense attorney, I protect my clients’ rights in these complicated cases. Call me at 916-442-1200 for a confidential and free consultation on your case.

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Nancy King was patient, persistent, and polite. She followed up and kept me informed, took a lot of the stress off of me. She was very instrumental in eventually getting the case against me dismissed. It was money well spent. Linda
My son's case involved felony theft and drug charges. We were thrilled when Nancy was able to obtain a dismissal on all charges. My son's now back on track with his career. Nancy is the kind of attorney who fights hard for her clients and actually cares about them. I recommend her highly. Shawn M.
Nancy King represented me on a DUI. I was involved in an accident and had a blood alcohol level of .13/.14. Nancy King kept pushing in the negotiation process. She was able to get me a wet reckless. Nancy King is someone you can trust. She knows what she's doing and works hard for her clients. I recommend her highly. D.V.
I was wrongfully targeted by the police for a felony offense. Nancy took care of everything for me and got the police to realize that they had made a mistake. Everything was handled promptly and professionally and I was able to protect my reputation. D.B.