Sunday, July 26, 2015

Message from the State Attorney's Office: Cellphone Search Warrants

By Mark A. Ober

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 

U.S. Const. Amend. IV

     Courts have long had to balance the individual protections guaranteed by the Fourth Amendment with the needs of law enforcement to conduct searches during the investigation of a crime and maintain safety. As technology has progressed, the courts have addressed the application of the Fourth Amendment to new technology. See Katz v. United States, 88 S. Ct. 389 U.S. 347 (1967) (applying the Fourth Amendment to words spoken into a telephone receiver in a telephone booth); State v. Jackson, 650 So. 2d 24 (Fla. 1995) (ruling on the applicability of the wiretap statute to pagers). When Fourth Amendment protections apply, law enforcement must follow the proper procedures to obtain necessary evidence during a criminal investigation.
     According to the Pew Research Center, in 2014, 90 percent of adults in America owned a cellphone and 64 percent owned a smartphone. With the increased capabilities of the smartphone, as well as the increased reliance on those phones, the cellphone has become a potential source of important evidence in certain criminal cases. This evidence can include anything from photos or videos to emails or text message conversations about criminal acts. Law enforcement must lawfully obtain this evidence for it to be used in a criminal prosecution.

     In 2014, the U.S. Supreme Court addressed the issue of whether law enforcement could conduct a warrantless search of the contents of a cellphone. Riley v. California, 134 S. Ct. 2473 (2014). In Riley, the cellphones involved were located on the suspects after arrest. Id. at 2481. The state sought to justify the warrantless search of a cellphone as a search incident to arrest. Id. at 2484. When discussing the amount of private information found on a cellphone, the court likened the search to the search of a home and emphasized the fact that the search would be far more extensive than a traditional search incident to arrest. Id. at 2491. The court found that a search of the digital information on a cellphone should be conducted pursuant to a search warrant, Id. at 2493; this process allows a judge to determine probable cause for issuance of the search warrant. The court did concede that there could be fact-specific circumstances where an exigent circumstances exception to the warrant requirement could apply. Id. at 2494.

     My office plays an integral role in the review of search warrants prior to their submission to a judge. As your state attorney, I assist law enforcement in legally obtaining evidence that will lead to just convictions, which will keep our community safe.