Police Focus on Mobile Devices Raises Important Privacy and Constitutional Issues

October 26, 2009 by David S. Seltzer

As a South Florida cyber crime criminal defense attorney, I keep an eye on news about how law enforcement agencies use mobile devices to make and prove their cases. That’s why I was slightly disappointed in an Oct. 22 article from the Orlando Sentinel that addressed the topic, but glossed over the potential Constitutional issues involved. The article notes that cell phones and their records have become important parts of police investigations, including Florida’s Casey Anthony case, in which a young mother is accused of killing her toddler daughter. But as I have written on this blog, the courts are still deciding how many phone records police should be able to access without a warrant.

The article details the importance that mobile device records are increasingly having for law enforcement. For example, cell phone records can show roughly where the device is physically located by tracing what towers it uses, allowing police to track a person’s movements. That capacity allowed police to discover that Casey Anthony never went to Tampa from her Orlando home, as she told her parents after daughter Caylee’s disappearance. In another case, phone records showed that Tracy Ocasio of Oconee made her last phone call near the home of James Hataway, a person of interest in her disappearance. The article notes that contacts, texts, emails and photos and videos on phones can all be useful to investigators; a cyber forensics professor told the newspaper that an estimated 80% of crime scenes have at least one piece of digital evidence.

Law enforcement does not need a warrant for data on where calls were placed and who was on the other end, because information shared with phone companies has no reasonable expectation of privacy. But the article briefly notes that officers need a search warrant or consent from the owner to search the devices themselves. In fact, as a Miami cyber crime criminal defense lawyer, I know that it’s not completely clear whether they need such a warrant. Officers may legally search a suspect’s physical papers during an arrest, but it’s not clear whether mobile devices, with their massive data capacity, count as “papers.” And of course, a search and seizure that does not come during an arrest may violate the Fourth Amendment to the U.S. Constitution, which is likely one reason the Florida Department of Law Enforcement has told officers not to search phones without a warrant. When it comes to mobile electronic devices, the law has not yet caught up with the development of new technology.

Like much of criminal law, laws on searching suspects’ phones must balance their rights with law enforcement’s need to do its job efficiently. Everyone involved in the system -- defendants, police agencies, prosecutors and Fort Lauderdale cyber crime criminal defense lawyers like me -- has an interest in seeing the law clarified. As you might imagine, I would prefer a clarification that leaves intact the Constitutional right to be free of unreasonable search and seizure, even if it means law enforcement must wait a few days to get warrants to search devices. But as an Orlando cyber crime defense attorney, I urge my clients and potential clients to be smart about what they carry around with them in the first place, so that a routine traffic stop cannot turn into a personal and civil-rights nightmare.