Last week we discussed whether the cops can search your phone. In this post, we’ll talk about a rule that sounds obvious but has big (and not so obvious) implications. It’s called the doctrine of Standing.
The general rule of thumb is that if the police obtain evidence in violation of the 4th amendment (i.e. they illegally search or seize property), the evidence they obtain cannot be used in trial.
The requirement of standing puts a twist on that rule. The requirement of standing says that if you don’t have a “reasonable expectation of privacy” in what the government is searching then the government can use whatever they find against you.
Again, this may sound obvious but it’s got huge implications if you think about it. Here are a few big picture rules and hypotheticals that deal with this issue.
1. You’re not protected from the illegal search of other people’s phones.
Let’s say you text your friend a picture of yourself holding a bag of marijuana and a message that says, “this is some very good weed. I am going to sell it at all the schools in town. Come buy some from me at my place (123 Tuscaloosa Drive Apartment A).” Then law enforcement illegally searches your friend’s phone and finds the picture. They can’t use that picture against your friend but they can use it against you. Even though the search was illegal, it wasn’t your phone so you didn’t have an expectation of privacy in it. Therefore it wasn’t your constitutional rights they violated. As a result, it will not be a violation of the constitution to use that evidence against YOU in trial.
2. You’re not protected from non-government actors.
Let’s say you send the same text message from scenario A. Then, someone unrelated to the government hacks your phone and posts the picture and text to the internet. Again, the government can use that evidence against you. In this case you had an expectation of privacy in your phone but the government didn’t get the contents of your phone from your phone. They got them from the internet, which you didn’t have an expectation of privacy about.
3. Websites can still share information they get from you.
This is a different spin on scenario B. Let’s say you’re selling weed on Craig’s List. Craig’s list can share your username and IP address with the government and the government can use it against you. By using Craig’s List you’ve shared information with them, and Craig’s List has no constitutional obligation of privacy with you.
4. You’re not even always protected when it IS your phone.
This is nitpicky but it helps to get an idea of the rule. Let’s say you’re the head of a household and buy your family phones. You pay for the phones, you pay the phone bill and your name is on all of the account information. The government illegally searches the phone your son uses and finds evidence that incriminates you. You argue that the evidence should be suppressed because the government illegally searched your phone. You will probably lose that argument and here’s why: even though you bought the phone and your name is on it, for all intents and purposes the phone is your son’s. The person who had an expectation of privacy in the phone wasn’t you. It was your son. By the same token, even though phone technically belongs to YOU, your son would be protected from the government’s illegal search of the phone because he does have an expectation of privacy in the phone.
5. CALL A LAWYER
As always, the rules are tricky and there are tons of exceptions. If you think you have something you need to talk to a lawyer about, it’s better to be safe than sorry. Call the Browne House Law Group for a free consultation today.