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April 7, 2017


  • Big win for criminal defendants and Criminal Defense Attorney in unanimous ruling

While the Trump administration was throwing false accusations of government wiretapping, Congress voted to allow private Internet service providers to sell personal customer information.  Our worries over the privacy of our personal digital information have grown, especially over information visible to police.

For decades, state and federal courts have been creating new exceptions to the Fourth Amendment’s warrantless search and seizure protections.  This created a contradictory patchwork of precedent, tests, and loopholes leaving everyone confused.
The widespread use of smartphones created a new level of worry, where authorities could gain access to our personal data.  Judges throughout the country have created contradictory standards.  How and when can police access data on our cell phones?

SCOTUS recently decided to address this.  In 2014, two cases involving searches of cell phones incident to lawful arrest were combined and heard as Riley v. California.  In an unanimous decision the Court refused to extend a warrantless search to Police for data stored on cell phones.  Even though the second defendant owned an old-style flip phone, the Court found no difference application of Fourth Amendment protections.
Finding that the warrantless search subject to lawful arrest exception was created to protect officers, Chief Justice Roberts concluded that only a cursory exterior search of a cell phone for hidden weaponry was allowed. “Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape.” Thus, a warrant is required under the Fourth Amendment to search contacts, notes, files, photos, videos, and any other file capable of being stored or viewed in a cell phone.
Before the majority of people carried cell phones, the Court reasoned, a search of a person was limited to objects or information a person could physically carry; thus, a person’s expectation of privacy was inherently lower. The type of data contained on a cell phone was traditionally kept at a person’s home or in storage that commanded the Fourth Amendment’s required reasonable expectation of privacy. “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of protection for which the Founders fought.”
The clear-cut nature of this standard is a rare win for defendants and defense attorneys, who have been burdened with fighting the admissibility of cell phone information obtained by police.  In his concurring opinion, Justice Alito urged Congress and state legislatures to consider passing new laws that draw “reasonable distinctions based on categories of information or perhaps other variables.” He warned that otherwise “it would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment.”