Aggressively Protecting Your Rights

Your phone may not be safe from law enforcement snooping

| Nov 2, 2020 | Criminal Defense

Your smartphone is password protected and the data on it is encrypted. Even if you don’t have anything nefarious to hide, you no doubt realize that your most sensitive personal and financial information is accessible from the hard drive and apps on your phone. Anyone with access to your phone can see your private pictures and videos, access your banking information, look at text conversations, see your call history and even track your physical movements.

Passwords and encryption do a good job of keeping most people out of your phone, but law enforcement officers might not be among them. According to a recent New York Times article, some 2,000 police departments and other law enforcement agencies around the country have access to sophisticated software allowing them to hack into most cellphones. This technology is not just found in major metropolitan areas. Even smaller city police departments and county sheriffs are investing in these hacking tools.

Searches not limited to major crimes

Cases alleging murder, rape, or terrorism might have public support for hacking into phones. But law enforcement is breaking into phones to investigate smaller offenses like drug possession/trafficking, vandalism, prostitution and parole violations. In one case from Coon Rapids, police hacked into a cellphone to investigate a fight over $70 that broke out at a local McDonald’s. These are hardly justifiable when considering just how intrusive a cellphone search is.

Is a warrant required to search your phone?

Most of the time, a search of a suspect’s property requires a warrant issued by a judge, but law enforcement officials try to carve out exceptions whenever new technology allows some ambiguity. In the past six years, the United States Supreme Court has issued at least two major rulings on cellphone privacy in a criminal defense context.

First, the Supreme Court ruled unanimously in 2014 that police are required to obtain a warrant before searching the cellphone of a suspect they arrest. In 2018, the nation’s highest court ruled that law enforcement must also seek a warrant before collecting bulk cellphone location data on the customers of cellular services providers, which is typically used to uncover evidence of a suspect’s movements around the time that a crime was committed.

These two rulings send a strong message that cellphones are uniquely personal devices, and the data contained within them should be protected except in cases where law enforcement can demonstrate clear enough probable cause to obtain a warrant.

Unfortunately, however, law enforcement agencies will likely continue to try to find loopholes that allow them to conduct warrantless searches of cellphones. Loopholes are fairly easy to assert, since technology advances faster than the laws and court rulings meant to regulate it. Each advance or update provides an excuse, however flimsy, for police to claim that their particular warrantless search isn’t prohibited by laws or prior court rulings.

Challenging collection of evidence in a criminal case

How police gather evidence in a case is as important as the evidence they gather. When law enforcement gather evidence without a warrant or a legally justifiable reason (such as demonstration of probable cause), that evidence is considered tainted. In such cases, defense attorneys can file a motion to suppress it (meaning it cannot be used against the defendant in court). With cellphone hacking now so common, it seems likely that evidentiary challenges will be increasing accordingly.