Recent statistics estimate that over 90 percent of all Americans own a cell phone, with two thirds of those phones being “smart phones” capable of connecting to the internet and functioning in many of the same ways a computer did in the past. Computers are perhaps even more common, with almost every American household owning at least one personal computer. As such, cell phones and computers both have been used for virtually everything, including to commit crimes or as tools during the commission of a crime.
This has led to a number of interesting questions as to how the Fourth Amendment’s protection against “unreasonable search and seizure” applies to electronic devices and the data they contain. This data could prove to be extremely valuable evidence in many criminal cases, so steps need to be taken to protect the right to privacy and prevent law enforcement abuse.
Do Police Need a Warrant?
The precedent for searching cell phones for data was established in a recent case—2014 in fact. In Riley v. California, a suspect was placed under arrest after a traffic stop for a weapons charge. During his detainment, officers searched his phone and found that he had been involved in a recent shooting. The state argued that searching the data on a cell phone during an arrest could be seen as a customary personal search made upon an arrest, such as officers usually do to check for weapons or evidence to support their suspicion.
However, the judge agreed with the defendant in the suppression hearing, arguing that the substantial storage capacity of a phone warranted special protection. Thus, officers are now required to get a search warrant if they wish to search through your cell phone. However, there is one exception, and that’s if officers suspect that evidence may be tampered with or destroyed by not conducting an immediate search upon making a custodial arrest.
Computers have been used to perpetrate crimes across a wide spectrum, ranging from immense thefts to intellectual property piracy to sex crimes (often involving children). Thus, officers have become fairly accustomed to having to dig through computers for data that could be submitted as evidence against those who are accused of a crime.
However, the laws regarding searching your computer are extremely similar to that regarding your cell phone: police may only search through these things in a select few circumstances, and almost all searches require a warrant. The only times when law enforcement may search your computer without getting a warrant are if you or someone else with authority over the computer and its contents consents to the search, or if officers suspect that evidence may be destroyed or tampered with.
Now it’s important to note that just because officers can still seize your computer if they suspect it contains evidence of a crime occurring. In many cases, those arrested for child pornography, internet sex crimes, and plenty of other offenses can have their electronics devices confiscated as part of an investigation. However, unless officers obtain a warrant, they cannot legally search through the data on these devices.For more information or if you suspect that your personal electronics have been illegally searched, speak with a Bergen County criminal defense attorney as soon as possible by calling Brickfield & Donahue at (201) 574-7919!