Privacy Rights in the Digital Age: Criminal Searches of Cell Phones

Daniel Noffsinger - Tuesday, September 08, 2015

The fourth amendment of the U.S. Constitution protects us from unreasonable searches and seizures by the government. This protection extends to our cell phones. In late June 2015 the U.S. Supreme Court in Riley v. California, unanimously ruled that the police need a warrant to search the cell phones of people they arrest. Here in Colorado, we also look to People v. Taylor, a 2012 Court of Appeals case, which permits the search of cell phone records by the police of people they arrest at the time of or “incident to the arrest,” to complete the analysis of permissible criminal searches of cell phones.

So, the question for us then is, “When can the police search our cell phones?” The short answer is, if you consent to a search, the police do not need a warrant and can search your phone until you tell them to stop. The longer answer is, if police have probable cause to believe there is incriminating evidence on the cell phone that is under immediate threat of destruction, they can immediately search it without a warrant.

Cell phones contain an extraordinary amount of information, as Chief Justice John Roberts writes in Riley,

The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video— that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone.

Traditionally, the U.S. Supreme Court has held that people have no reasonable expectation of privacy to information they show to third parties, and so no warrant is required to obtain that information. Justice Sandra Sotomayor, in an earlier decision, suggests that “it may be necessary to reconsider the premise . . . This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” like dialing phone numbers, visiting websites, and purchasing books and medications online.

The bottom line: Given all the personal details that modern cell phones can reveal, the police must get a warrant before searching them.

Contact a Colorado Springs Criminal Defense Attorney

Call, email, or stop by Noffsinger Law and receive a free consultation if you or someone you know has been arrested or is being charged with a crime. Our office is located at 545 E. Pikes Peak Avenue, Suite 205, Colorado Springs, Colorado. We are open weekdays Monday through Thursday from 8:00am to 5:00pm and Friday from 8:00am to 3:00pm.