We’ve been looking in recent posts at the topic of searches and seizures, the warrant requirement, and some recent cases involving jurisdictional issues surrounding warrants. Another warrant-related issue that is a hot-button issue at present is to what extent cell phones and other mobile digital devices should be treated as private.
From the perspective of criminal investigation and prosecution, cell phones can be valuable resources for evidence. Back in 2014, the Supreme Court ruled unanimously that examination of a criminal suspect’s cell phone constitutes a search and a warrant is required absent exceptional circumstances, such as exigent circumstances or consent.
The 2014 case has not entirely settled the warrant question, though. That’s because federal agents are becoming increasingly aggressive in conducting searches on those detained at the border. Stories are circulating about border agents requiring individuals to allow agents to search their phone without a warrant, and in some cases even to reveal their passwords to allow the search to proceed. This tactic has been used not only at the border. Are these searches violating the warrant requirement, or is the Fourth Amendment simply not applicable at the border?
Such cases implicate not only the Fourth Amendment protection against unreasonable searches and seizures, but also the Fifth Amendment protection against self-incrimination. The existing case law on the Fifth Amendment issue is not settled. Some federal courts have ruled that requiring a criminal suspect to provide his or her fingerprint to unlock a phone does not violate the Fifth Amendment since it doesn’t actually require any admissions. The issue is stickier with requiring suspects to divulge their passcode, since it does arguably involve an admission.
The long and short of it is that, although search warrants are required before authorities can search a cell phone, there are still potential questions about the contexts in which this rule applies, as well as whether there are any Fifth Amendment issues with requiring suspects to divulge their passcode. Still further, there is the issue of government hacking and spying on cell phone users and what legal protections apply in those situations.
As these issues continue to be dealt with by the courts, there will be more clarity for investigators in conducting searches, and more clarity for defense attorney in protecting their clients from abuses. Criminal suspects should, of course, be aware of their rights, and work with experienced legal counsel to address such matters in the context of criminal defense.
MPR News, “Is privacy still worth protecting?,” Bob Collins, Feb. 26, 2017.
North Carolina Criminal Law: A UNC School of Government Blog, Update on Fingerprints, Phones and the Fifth Amendment,” Jeff Welty, Jan. 23, 2017.