A recent New York Times article highlighted the struggles courts have had with electronic technology and search and seizure law. Traditional analysis states that the Fourth Amendment to the United States Constitution protects places and things in which a person has a reasonable expectation of privacy. So under what circumstances can police search a cellphone without a warrant?
The new “smartphone” can contain detailed information about locations someone has visited and communications such as texts, emails and posts on Facebook and Twitter. Much of this material is maintained in the records of cellphone providers. According to the New York Times, a response to a Congressional inquiry revealed that cellphone carriers responded to 1.3 million requests from police for text messages and other information in 2011.
Courts have been divided on when police need to obtain a warrant. The California Supreme Court ruled that police could search a cellphone without a warrant if the phone was with the suspect a when he was arrested. A trial judge in a Rhode Island murder case suppressed the search of the defendant’s cellphone finding that there was a reasonable expectation of privacy in the contents of the phone.
Some states are attempting to address the issue through legislation. Bills have been introduced in Delaware, Maryland and Oklahoma to require police to secure a warrant to obtain location records from cellphone carriers. A similar bill was vetoed in California earlier this year. In some courts, prosecutors have argued that the location information they have requested is a business record maintained by the cellphone carrier and not information that is constitutionally protected.
As the courts and legislatures attempt to grapple with this issue, will technology outpace their ability to establish rules for law enforcement?