Michigan State Police Under Fire for Potentially Unlawful Searches of Cell Phones

April 25, 2011 by David S. Seltzer

As a cyber crime criminal defense attorney, I’ve written here before about the issue of whether and when police officers are permitted to search cell phones, iPods and other personal electronic devices that carry large amounts of data. Because the law on searches and seizures was written long before these devices were invented, settled law doesn’t address the issue of whether the devices are searchable without a warrant for people under arrest. However, the Fourth Amendment to the Constitution is very clear that police may not randomly search people who aren’t arrested or even accused of a crime. For that reason, I was very interested to see an April 21 article from the Detroit Free Press about a controversy involving the way the Michigan State Police search mobile phones.

Since 2006, the Michigan State Police have had and used a device that searches mobile phones, the article says. The CelleBrite device must be physically connected to a phone, but can then extract data from the phone itself and its SIM card, disable the SIM card (so the user can’t receive calls) and disable the password. Data extracted includes address books, text messages, photos and even deleted information. When the American Civil Liberties Union of Michigan originally found out about the devices, it filed a Freedom of Information Act request that confirmed the State Police had the devices. The ACLU then requested records about how the devices are used, saying it had been tipped off that they were not always used lawfully. It was also concerned that the CelleBrite devices were being disproportionately used with people of color.

The state agreed to supply the information but said it would cost $544,680 to provide it to the ACLU, and required a deposit of $272,340 before any documents would be released at all. The ACLU tried for nearly three years to narrow the request enough to lower costs, but the state always replied that there were no documents for the time period it specified, but refused to give dates for when there would be records available. The ACLU published a letter April 13 calling on the state to reveal the information, kicking off a national news story. The Michigan State Police released its own statement that day, saying it has never used the devices without a warrant or consent.

As a cyber crime criminal defense lawyer, I’m glad the ACLU won’t take their word for it. In the world of criminal defense, we know very well that police officers make mistakes or step over the line sometimes. When they are caught, they know they may be disciplined or the case against the defendant will be dropped, which can cause long court battles over basic violations of defendants’ civil rights. It’s not clear whether there’s been misconduct in Michigan, and it will remain unclear until and unless the state police are willing to release these public records at a reasonable price. However, the state police may be losing a PR battle by making themselves look like they have something to hide — even if they really have been following the law. As a cyber crime criminal defense attorney, I hope they have been, because wrongdoing could mean wrongful convictions that can and should be overturned.

Seltzer Law, P.A. represents clients who are accused of all types of crimes involving technology and the Internet. If you’re facing cyber crime charges and you know you need experienced legal help, don’t hesitate to call us for a free consultation. To set one up, call us toll-free, 24 hours a day and seven days a week, at 1-888-THE-DEFENSE (1-888-843-3333) or send us a message online.