Our Fort Lauderdale criminal defense attorneys know that just a decade ago, pagers were a common form of communication, and Facebook was not a part of the collective American lexicon.
Now, almost everyone has a personal cell phone and that phone has not only replaced land lines — but also serves as personal computer, camera, television, calendar and communication device.
And it’s that little device that has become central to numerous arguments in criminal cases across the country, including Florida. The fact is, these devices are treasure troves of information for criminal investigators. In some instances, they can make or break a criminal case. Often, defense attorneys have to fight hard to keep such evidence out of the case.
At particular issue is whether the warrantless seizure of these devices constitute a Fourth Amendment violation.
A judge in Rhode Island recently thought so. Cell phone evidence led to the conviction of a man there on charges of murder relating to the death of a 6-year-old boy, and the judge ruled that evidence should not have been admissible, meaning the defendant will get a new trial.
However, a judge in Washington State ruled that text messages were similar to voice messages, which could be potentially heard by anyone in a room, and were therefore not protected by the state’s strict privacy statutes.
And then you have a federal appeals court in Louisiana that is currently wrestling with the issue of whether records of location filed away in your smart phone are deserving of privacy protection or whether they should instead be classified as business records belonging to the phone company.
Perhaps because the courts can’t seem to reach a consensus on these issues, a Senate committee is slated to hear proposals to alter the Electronic Communications Privacy Act of 1986, found in 18 U.S.C. Chapter 119. This is the law that governs how authorities can monitor digital communications.
Certain kinds of cellphone information have been subject to warrantless surveillance by the courts. The amendment to the law would mandate that police obtain a search warrant in order to search an e-mail communication – no matter how old the record. That would update the rule that allows a search without a warrant of e-mails that are older than 180 days. This would add an extra protection for criminal defendants.
But what about cell phone data? E-mail might be included in that data, but it’s certainly not the only thing available – and it’s those other elements – an extensive list of them – which haven’t yet been granted legal protections.
There was a ruling out of Ohio that indicated police would have to have a warrant for a cell phone because, unlike a single piece of paper that could be stuffed into a person’s pocket, a cell phone in a pocket might contain a laundry list of personal information – some of it not solely belonging to the suspect.
However, in California, the state Supreme Court ruled that a cell phone could be seized and searched without a warrant as long as the phone was in the possession of the suspect at the time he or she was arrested. Of course, who doesn’t carry their cell phone with them everywhere these days?
The bottom line for our potential clients is that one should never assume that just because you sent a private text or e-mail that it can’t later be used against you in court. If you have messages that may be possibly incriminating, discuss those concerns with your attorney immediately.
If you are charged with a crime in Palm Beach or Broward counties, contact the Law Offices of Leifert & Leifert, a Partnership of Former Prosecutors, for a free consultation to discuss your rights. Call 1.888.5.DEFEND.
Courts Divided Over Searches of Cellphones, Nov. 25, 2012, By Somini Sengupta, The New York Times
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Former Cop Strikes Plea Deal on South Florida Weapons Charges, Nov. 20, 2012, Fort Lauderdale Criminal Defense Lawyer Blog