Our society increasingly functions via portable electronic devices. Emails have largely replaced letters, cellphone calls have largely replaced those made on landlines and an individual’s wireless Internet search history can reveal a great deal about what he or she loves, hates and does on a day-to-day basis. As convenient as portable electronic devices are, they can also reveal incriminating evidence when seized by law enforcement.
As a result, it is critical that the public understands the rules and regulations governing cellphone searches. Without this advanced notice, an individual’scriminal defense strategy could be greatly complicated if he or she is unsure whether a warrantless cellphone search by law enforcement will be considered a legal or illegal search and seizure under the Fourth Amendment.
Unfortunately, courts nationwide are divided on the legality of warrantless cellphone searches. Some insist that they are constitutional, while others insist that they are constitutional violations. In addition, some courts believe in a more nuanced approach, in which warrantless cellphone searches of criminal suspects are legal under some circumstances and illegal under others.
This divided approach is unacceptable in relation to both criminal justice and personal freedom. Only when individuals have fair notice of what privacy rights they do and do not have can they make decisions about the kinds of behavior they will and will not engage in. In addition, an inconsistent approach to this issue leads to disparate treatment of criminal defendants. Whereas one court might protect a defendant’s privacy, another court might treat the exact same defendant in the opposite way. It is critical that this issue be addressed in a way that courts begin to treat this issue consistently.
Source: New York Times, “Courts divided over searches of cellphones,” Somini Sengupta, Nov. 26, 2012
Andrew Moses
Andrew has been practicing criminal law his entire career. After graduating from law school he began working as an Assistant State Attorney prosecuting cases in Orange and Osceola Counties. During his time as an Assistant State Attorney, Andrew handled all types of cases ranging from misdemeanors to such serious felonies as drug trafficking and armed robbery. His experience as a prosecutor helped him gain perspective of the criminal justice system and how the government established its cases.
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