The Supreme Court has unanimously held that police must have a warrant before searching the contents of a cellphone. The decision was expansive and seemed to protect not only the contents on the cellphone but also the contents off the phone that could be accessed through the phone, such as information on the cloud or on social networks.
Prior to this decision, the police were pulling information off of people’s cell phones including their text messages, emails, photos, and social content that the phone could access. In more serious felony cases, the information the police sought was more expansive, including GPS locations when using the phone.
Historically, the police were free to search a person incident to arrest and this search included things like cellphones. In these old-fashioned searches, the police would look at the contents to dig for proof without any knowledge that there was actual criminal evidence on the phone.
Here are some situations where this new law may apply:
Sample Application in Drug Cases
Typically, when someone is pulled over for drugs, the police will search the phone for text messages about potential drug use. The police will also look for pictures on the phone that capture drug use. The police will also pull contact lists and facebook content to look for associations with people known to use or distribute drugs.
In the case of federal drug cases, the government may look for locations where the phone has been and use this information to demonstrate that the crime spans multiple States. It can also be used to determine whether you were potentially located near a place where a drug deal took place at a known time.
With the passage of this law, all of these types of police activity can be challenged in court. Essentially, a Criminal Defense Attorney would argue that these invasions into your privacy violate the Constitution and thus should be suppressed. Under the ruling by the Supreme Court, if the police did not have a warrant, then they should be suppressed.
Sample Application in DUI Cases
In a DUI Case in places like Denver, a police officer may look at a person’s phone to see pictures from the night showing drinking or drug use. This information, with a date stamp may be used to show that you were intoxicated at the time you were pulled over. Though it is unlikely that a police officer will do this type of search in a standard DUI case, it may occur in more serious cases involving drinking and driving such as a vehicular assault or vehicular homicide.
In this type of situation, it is imperative that the criminal defense lawyer seek to suppress the introduction of the evidence that was taken in violation of your Constitutional rights.
Sample Application in Domestic Violence Cases
In certain Domestic Violence Cases, the police commonly pull text messages between the defendant and the alleged victim. This is most common in cases that involve restraining orders or protection orders. This information is then used to try to establish that the defendant has violated the protection order. In addition to the violation of the protection order, this type of information could also be used to establish that the defendant violated his bond conditions (namely, that he not contact the alleged victim).
It is crucial in these types of situations that the criminal defense attorney try to suppress the information that the police officer took off the phone because this information, in many cases, is the only evidence that a crime or a violation occurred.
This ruling on cellphone searches is a game changer for criminal defense attorneys and their defendants. If you are facing a charge where an officer searched your phone, you should definitely be aware of the potential Constitutional violation that took place and be prepared to discuss this issue with your Colorado Criminal Defense Attorney.
The information in this post is for informational purposes only and should not be construed as legal advice or as the creation of an attorney-client relationship. For legal advice, please contact an Attorney.