Virtually everyone today carries some type of cell or smart phone with them. We utilize these devices to not only communicate like a traditional telephone but to access the internet, send text messages, and perform other various day to day tasks through mobile apps. Phones today are powerful devices which people can use to make their lives easier and also provide entertainment.
While cell/smart phones are useful, they also create a digital footprint which police and other members of law enforcement can often easily trace to identify suspects and often obtain convictions for various crimes such illegal drugs, narcotics, guns, firearms and even violent felonies such as aggravated assault, attempted murder and murder. Our office represents individuals charged with these crimes in Pennsylvania and New Jersey from its office based in Philadelphia, Pennsylvania
Warrantless Searches – The General Rule
While police may obtain evidence from a cell or smart phone, it is important that your criminal lawyer understands and explains to you the circumstances under which police may search your phone. Warrantless searches are generally not constitutional. I have written a number of articles on warrantless searches pertaining to vehicles, businesses, and homes. While the search of a vehicle is much different than the search of a home, it is important that your criminal lawyer explain the difference between the searches of various items and locations. I’ve also written a number of articles on probable cause and reasonable suspicion which are important concepts.
Smart Phone Searches in Pennsylvania and New Jersey—Exceptions to the Rule
In Pennsylvania and New Jersey, police need a search warrant in most situations to access the contents of a cell or smart phone. While there are exceptions to this general rule, these are rare situations.
Consent to Search
Everyone enjoys constitutional protections against illegal searches and seizures but a person can waive those constitutional rights if they provide police with consent to search a phone, home, vehicle, or place of business. This is the reason why I advise clients never to give consent to police because it substantially hinders your criminal lawyer’s ability to fight criminal charges. In most illegal drug and narcotic cases, the most powerful defense tool is a pre-trial motion to suppress evidence, especially in cases where drugs are found on an accused’s body. I have written articles explaining actual and constructive possession. While a criminal lawyer can make arguments at trial regarding these issues, they are generally much weaker arguments than pre-trial motion issues pertaining to illegal search and seizure under the US Constitution under the Fourth and Fourteenth Amendments along with your state constitution’s applicable sections.
Plain View Doctrine
In addition to consent, police also do not need a warrant if they can access the information through simple observation under the plain view doctrine. Similar to the search of a house or a car, police do not need a warrant to obtain the information or evidence if that information or evidence is in plain view. If police can view or see evidence of criminal activity they can seize it without a warrant. This is a very important concept when it comes to smart phones. While a traditional phone simply had buttons and perhaps a small caller identification screen, today’s smart phones are much larger and offer crystal clear images.
US Supreme Court – Smart Phone Searches Require a Warrant
In 2014 the US Supreme Court found that warrantless searches of cell phones, even those phones obtained during a lawful search incident to arrest, are illegal. The US Supreme Court, in the case of Riley v. California (2014), stated a very simple rule – police need as warrant to search a cell phone. This decision is very important because it is applicable to all states including Pennsylvania and New Jersey While a state constitution can provide additional protections, no state constitution or law may provide less protection than the US Constitution. If you’re charged with a crime in Pennsylvania or New Jersey and police obtain cell phone evidence against you, it is very important that your defense attorney evaluate this search and seizure issue. For more information contact our criminal defense law firm in Philadelphia.