What’s on Your Smartphone? The Police May Have More Access Than You Know

It is hardly fair to refer to the microcomputers most of us carry every day as "phones." Calendars, texting records, voicemails, photo files and even remote access to email, social networking sites and data cloud services are humdrum features on most mobile devices in the information age.

The amount of data stored directly on or accessible by the average Smartphone is nothing short of astounding. What happens when your phone falls into the hands of someone you would rather not share it with, for example a police officer who has just placed you under arrest? You may be surprised to learn just how freely the police may be able to access your cellphone without your permission.

An Evidence Overview

Evidence: it is the key to a criminal case against you. The police are free to gather it in a variety of ways - but are somewhat restricted by your Fourth Amendment rights, which protect you from "unreasonable" searches and seizures. Evidence collected in violation of your rights is inadmissible in court (in other words, it may not be used against you). To safeguard your Fourth Amendment rights, before conducting most types of searches the police must go before a judge and obtain a warrant based on probable cause (a reasonable belief, given all known facts and circumstances, that a crime has been committed and that evidence of the crime is likely to be found in the place to be searched).

In many modern criminal prosecutions, evidence obtained from a cellphone is instrumental; it may even be the sole evidence offered against a defendant. So how is it gathered? Sometimes it is gathered right under your nose, with little or no oversight.

Warrantless or Warranted Cellphone Searches

At any given time, your cellphone company can use information from its towers to triangulate the location of an active cellular device. Police are increasingly using this information, oftentimes without obtaining a warrant beforehand. According to the results of a recent ACLU study, of more than 200 law enforcement agencies surveyed, over 95 percent routinely use data provided by cellphone providers to track the location of cellphones.

Your location is one thing, but what about the information actually on your phone? Typically, police must obtain a warrant before listening in on an actual voice conversation; so-called "phone tapping" is taken quite seriously, perhaps a holdout from the days of widespread landline communication. However, information like your saved texts, photos, call records and even external content accessible from your phone do not always enjoy such extensive protections.

When an officer arrests a suspect, he or she may be able to conduct a limited search of the suspect's phone, without a warrant, based on a belief that it contains incriminating information. Although the U.S. Supreme Court has not yet addressed this issue, various federal appeals courts have made rulings that seem to indicate call record and text messages on a phone may be open game during an arrest due the risk of losing such electronically-stored information if police wait to obtain a warrant.

The potential erosion of Fourth Amendment rights through warrantless cellphone searches is no doubt a valid concern. But even when a warrant is required, it is not a substantial barrier that prevents police from accessing your data. On the contrary, obtaining a warrant is tantamount to a judicial nod of approval for law enforcement officers conducting a cellphone search; the scope of a search conducted pursuant to a warrant is less likely to be highly scrutinized in future courtroom action.

For Apple Smartphones, many law enforcement agencies are turning to simple, fill-in-the-blank court orders that along with a judicial signature become an all-access pass to your iPhone. These documents require Apple to bypass your passcode so that officers may conduct a search. A locked Android phone presents a slightly higher hurdle, because Google itself does not have access to encrypted Gmail account passwords. However, after obtaining judicial approval, the police can force Google to reset your password in order to gain access to a locked Smartphone.

Police officers are trained experts in investigation, and they are well aware of the wealth of information that can be uncovered on a mobile device. They will absolutely pursue a warrant to search your phone if they believe it will lead to incriminating information - and often, they obtain one.

Confusion Surrounds the Status of Smartphone Searches; Cut Through It With Legal Help

In many modern-day criminal cases, cellphone data is the number one source of evidence. Yet, the law underpinning cellphone searches has been slow to catch up to rapidly-evolving technology and police practices.

Many prosecutors have successfully argued that even without a warrant, searching a cellphone is perfectly acceptable during an arrest, likening it to looking through a suspect's wallet or pocketbook. Some privacy advocates, noting the capacity of mobile devices to store and access digital information ranging from personal videos to appointment calendars, vehemently object to this viewpoint.

Different courts have come down on both sides of this debate. While a clearer answer about cellphone searches by law enforcement may not materialize unless and until the Supreme Court takes up the issue, one thing is clear: your cellphone in law enforcement hands can be extremely damaging to your case.

If you are being accused of a crime and fear that police may be improperly accessing data on your phone, it is important to stage a strong defense, raising all possible objections to the introduction of tainted evidence. Contact a criminal defense attorney today to learn more about your privacy rights in the context of cellphone searches.

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