There's a hot legal topic affecting law enforcement in the digital age: When can police conduct searches of cell phones and laptops?
As you may know, smartphones and laptops can contain a wealth of information that was not contemplated in 1986, when Congress passed laws about government monitoring of digital communications.
So courts in different states have had a hard time coming up with a uniform rule as to when police can, and cannot, search your cell phone or laptop. In some states, police searches of digital devices may be thrown out if officers do not have a warrant, while in other states, the evidence may be perfectly admissible in court, reports The New York Times.
The issue has been brought to federal lawmakers, who are considering changes to the 1986 Electronic Communications Privacy Act. In the meantime, whether police can search your cell phone or laptop may hinge on whether they have a warrant to conduct the search.
If Police Have a Warrant
If law-enforcement agents have a valid warrant to search your smartphone or laptop, you are likely out of luck regardless of what state you live in. To obtain a warrant, police typically need to show that they have probable cause to believe a crime was committed. In other words, the police will have to convince a judge that it is more likely than not that a crime has occurred, and that they will find evidence of the crime on your digital device.
If Police Do Not Have a Warrant
The issue gets much trickier when police do not have a warrant. In some states like Ohio, courts have found that police cannot conduct a warrantless search of a smartphone because a phone may hold "large amounts of private data," reports the Times. But other states like California have ruled that cops can look through a cell phone without a warrant, as long as the phone was with the suspect at the time of arrest.
Judges have compared cell phones to pieces of paper, suitcases, containers in a trunk, and face-to-face conversations in trying to find an analogy that fits with existing laws or court precedents, the Times reports. The result: very different rulings, and uncertainty for everyone.
So unless federal lawmakers get together and decide on a rule, or the Supreme Court issues an opinion on the issue, individuals challenging the search of their cell phones and laptops could see vastly different outcomes in court.
If you are facing criminal charges and the prosecution is relying on data from your smartphone or laptop, you will want to work with an experienced criminal defense attorney. Depending on the state you live in, you may different rights when it comes to getting the evidence thrown out.
- Senate committee OKs bill requiring warrant for email, cloud search (NBC News)
- The Fourth Amendment 'Reasonableness' Requirement (FindLaw)
- Are Warrantless Cell Phone Searches Legal? (FindLaw's Blotter)
- Do Cops Need Warrants for Your Xbox Console? (FindLaw's Blotter)