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Cell phones, password protection, and constitutional rights, P.1

Privacy is an important issue when it comes to criminal investigations. Law enforcement officers are required to follow very specific rules related to privacy, and their failure to do so is an infringement of the constitutional rights of criminal suspects. With the popularity of cell phones and other mobile devices, the question of privacy is coming up more often in criminal cases.

Take, for example, a recent case in which Florida law enforcement stopped two individuals on suspicion of speeding and learned in the course of the stop, from which the two individuals fled, that they had stolen the car. A password protected cellphone left behind by one of the suspects was retrieved during the stop. That phone was later unlocked by the police department’s forensics lab and searched for evidence. 

The question in a subsequent criminal case against the individual who dropped the phone—and on appeal, especially—was whether police should have obtained a warrant prior to searching the phone. In general, police officers are required to obtain a warrant before conducting a search. Not all investigative observation, however, constitutes a “search” within the meaning of Fourth Amendment. The key is whether there was a reasonable expectation of privacy.

The U.S. Supreme Court, as some readers may know, has already ruled that criminal suspects have an expectation of privacy with respect to cellphones and that police officers need a warrant before searching such devices, unless some exception to the warrant rule applies. In the above-mentioned appeal, the Florida appeals court ruled that the fact that the phone was abandoned in a stolen vehicle did not overshadow the fact that the phone was password protected. Password protection seems to have been the factor that led the court to rule against the government in the case. Interestingly, prosecutors in the case did not argue for good faith, which is an exception to the warrant requirement that applies when officers acted under an honest belief they were complying with the law.

It remains to be seen how far efforts to secure connected devices will be recognized as giving rise to an expectation of privacy. In our next post, we’ll continue looking at this issue and how it impacts criminal defense, and another recent case involving password protection and the Fifth Amendment. 

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