Cell phones and search warrants
In the United States, there are approximately 327 million cell phones currently in use.
I certainly am not an expert in this area, but I do know that they are used for various things including phone calls, texting, internet access, storing pictures and personal data, and much much more. Every time they are used, an internal record is made.
Unfortunately, a few people use them for illegal activities, which are also recorded.
Law enforcement knows this, and when investigating a suspect’s criminal actions and have legally come into possession of the suspect’s cell phone by way of a search warrant or an arrest, it is common for them to have the phone’s contents forensically examined to determine if there is evidence of a crime.
However, since the Fourth Amendment to the United States
Constitution provides that we have the right to be secure from our personal property being unreasonably searched and seized, there are many legal questions which arise as to cell phone searches.
One question is if the police have the right to search a legally possessed phone’s contents without a search warrant.
Until 2014, courts had various opinions on the answer. In that year the United States Supreme Court gave the final answer in Riley v California and held that due to a defendant’s expectation of privacy rights, a search warrant was required.
What wasn’t answered is the collateral question of what happens when the police legally search a phone for evidence of one crime and inadvertently discover evidence of another.
Again, courts have taken different views on the answer to this question.
In Michigan the issue was settled in 2020 by the Michigan Supreme Court in People v Hughes. In Hughes, a defendant’s cell phone was searched pursuant to a warrant providing authorization for locating evidence of cocaine and other illegally possessed controlled substances. The police found that evidence and additional evidence that the defendant had committed an unrelated armed robbery.
The court held that under those circumstances, a second search warrant for the armed robbery evidence was required.
Nationally the split of authority continues.
To borrow a line from the song of the same name, I’m sure the United States Supreme Court will weigh in on this issue “someday soon.”