By Leischen Stelter
In the coming months, expect to see several cases in the U.S. Supreme Court that revolve around privacy rights, technology and the Fourth Amendment’s rights regarding search and seizure.
An article in today’s issue of USA Today points to two such cases that the Supreme Court may take on about whether or not police have the right to search mobile devices without first obtaining a warrant.
It’s clear that police have the right to search a person during an arrest, but do they have the right to search the contents of the cellphone that is on that person and is that data usable in court?
Back in December, I spoke with Kevin Metcalf, who is a former law enforcement officer with more than 20 years of experience as a police officer, Border Patrol agent, SWAT team member and Federal Air Marshal. He is currently a deputy prosecuting attorney in Arkansas as well as a professor at American Military University, teaching courses in public safety and legal studies.
Metcalf said the laws and standards for search and seizure of such digital evidence are constantly evolving and it can be extremely confusing for police and prosecutors alike. For example:
- What information can police legally access from a suspect’s device?
- Can they pick it up and look through it?
- Is the phone analogous to a box?
In regards to the third bullet point, a common legal argument is that a phone or laptop is just like a box an officer finds in a suspect’s vehicle. During a stop and arrest if an officer legally has the right to search a box in the car that may have evidence associated with the arrest, does that right carry over to a laptop or a phone? After all, isn’t a laptop or phone just a digital container?
The issue of whether or not police can search the contents of a cellphone (and use it against a suspect in trial) is just the tip of the iceberg when it comes to privacy rights and the law.
Another hot topic—as pointed out in the USA Today article—is the whether or not police can obtain the location of a person from their cellphone search provider without a warrant? The Supreme Court is likely to weigh in on that issue in the near future as well.
In the meantime, as the country’s highest court struggles to evaluate and decide how modern technology impacts the public’s privacy rights, what are law enforcement officers supposed to do? How should police conduct searches?
The safest route, Metcalf said, is for police to obtain a search warrant for the seizure of digital evidence. Get a search warrant and know how to protect digital evidence from being destroyed.
As a law enforcement officer, have you received training about how to treat cellphones during an arrest? Do you consider the contents of a cellphone potential evidence? Please share your insights in the comments section.