Our cellphones are like nothing else we own. They’re small enough to fit in our pockets but big enough to store years of personal information. For most of us, they’re tiny containers of pictures, memories, conversations, passwords, and embarrassing search engine inquiries. They tell the story of who we are in a way that no other material belonging can.
That’s why it’s important to know what kind of privacy to expect from the government with regards to what’s on your phone. Say you‘re getting interviewed by the police and they ask for your phone. What do you do? What can you do? From a privacy perspective, is looking through a person’s phone any different than ransacking their house? This blog will hit the high points of case law and criminal procedure and answer some of the biggest questions related to cell phone privacy.
1. The Police can take your phone from you if they have a warrant.
All the police need to get a warrant is probable cause (a 50.1% chance) that the search will uncover criminal activity. There’s (much) more to discuss here and we will deal with some of it in later posts.
2. The Police (probably) cannot make you give up your password.
The Supreme Court hasn’t addressed this issue directly yet, but some lower courts have. The important point from these cases has been that saying (or typing) your password is a testimonial act. All that means is that the Fifth Amendment is implicated in it. The Fifth Amendment protects you from giving evidence against yourself. If the password will used to unlock your phone and uncover incriminating evidence then (at least according to the United States Court of Appeals for the 11th Circuit) you don’t have to give law enforcement your password.
3. Evidence Illegally obtained from a cellphone can be Suppressed.
As we talked about in an earlier post, one of the remedies for an illegal search is suppression of the evidence obtained. For example, imagine if the cops illegally search my house and find a bag of marijuana. I can file a motion to keep the marijuana from being used as evidence in a trial against me. The state can prosecute me for possessing marijuana, they just won’t have any evidence to use against me. The same is true if cops illegally search your cellphone.
4. It Has to be Your Phone.
To keep the evidence from being used against you, it has to be a GOVERNMENT ACTOR illegally searching YOUR cellphone. It may sound obvious, but the general idea is this: if you don’t have a reasonable expectation of privacy in something, you can’t keep the government from using it against you. If a cop illegally searches your friend’s phone and finds evidence that incriminates you, that evidence can be used against you. Why? Because you personally don’t have any reasonable expectation of privacy with regards to what is on your friend’s phone. The question is whether you “have standing” to challenge the search. We discuss the “standing” issue in greater here.
5. Even if the search was illegal, the evidence still may be used against you.
Inevitable discovery. Let’s say the officer forces you to give him your password. He unlocks the phone and finds evidence of criminal activity. In theory, that evidence should be suppressed. However, if the state can show that the cops would have been able to access that evidence anyway then the evidence can still come in. For instance, if the police department had a device that allowed them to quickly unlock password protected phones, and they could show that the device worked on your phone, the evidence illegally obtained could still be used against you.
DON’T RELY ON YOUR KNOWLEDGE OF THE LAW. TALK TO A LAWYER.
The most important thing to remember is that for every rule there are several exceptions. Maybe you’ve been charged with a crime connected to your cell phone. Maybe you’re worried you might be charged with a crime. Maybe law enforcement has contacted you and wants you to do an interview. In any event, the best next step is the same: talk to a lawyer.
Contact the Browne House Law Group for a free consultation.