Over the past few years, society has become dependent on cell phones for more than just communication. As such, there have been many debates on the issue of a person's right to privacy.
While technology continues to advance, California lawmakers have important decisions to make regarding what police officers can or cannot do when searching personal electronic devices.
In general, a police search cannot be conducted on a person's mobile phone without a warrant. However, there are many gray areas that officers may try to exploit as part of the so-called "legal process."
Privacy interests can, therefore, be infringed if a person is not fully aware of their rights under California's illegal search laws.
However, at Goss Law, these rights are taken very seriously. Anyone who has had their cell phone seized and searched illegally can call its Sacramento office and book a free consultation. Goss Law can also advise on how long do you stay in jail for a bench warrant in CA?
What Laws Affect Cell Phone Privacy in Sacramento, CA
There are too many incidents in California where people are arrested or detained on suspicion of certain offenses, only to discover later on that police searched their electronic device without a warrant.
Such unreasonable searches are not permissible by law. The following are some amendments and a doctrine that can help to understand what a person's rights are when it comes to cell phone privacy:
The Fourth Amendment Right Against Unreasonable Search and Seizures
In the fight against an illegal and warrantless search of an individual's cell phone, one of the greatest weapons a criminal defense attorney can use is the Fourth Amendment right against unreasonable search and seizure.
While the meaning and scope of the Fourth Amendment rights have become increasingly complex over the years, their purpose is still to protect individuals against unreasonable government intrusion.
This can be boiled down to mean law enforcement officers are not permitted to search a cell phone without a warrant or other legal justification.
The Fifth Amendment Right to avoid incriminating testimony also adds another layer of protection in cases where the police officer asks a suspect to unlock their phone without a warrant.
The Third-party Doctrine
What about a person's right to privacy when it comes to information they share with someone else? Do police officers have access to that even without a warrant?
This is where the third-party doctrine will have to be considered. Traditionally, it said police officers could access such information even without the consent of the person who shared it.
In 1979, the U.S. Supreme Court ruled that a person cannot maintain a reasonable expectation of privacy if they willingly share information with a third party. This rule is now limited. In 2018, the U.S. Supreme Court held in Carpenter v. United States that police generally need a warrant to get historical cell phone location data. In California, the Electronic Communications Privacy Act (CalECPA, PC 1546.1) bars the government from forcing a service provider to turn over electronic communication information without a warrant or other process the law allows.
Are Law Enforcement Officers Allowed to Search a Phone Without a Warrant?
Chief Justice John Roberts set the record straight when he said that there is a simple answer to the question of what a police officer must do before searching a cell phone. It is to get a warrant with a judge's signature on it.
As such, this is an iron-clad law that leaves very little room for interpretation. However, some exceptions can temporarily suspend the need for a search warrant. For more information, a Sacramento criminal defense lawyer may be able to help.
The following are some typical situations that need to be considered:
There Are Exigent Circumstances
Some real-life scenarios may require police officers to search a phone quickly to prevent, for example, the escape of a fleeing suspect, the destruction of evidence of a crime, or bodily harm or imminent danger to someone.
These are known as exigent circumstances. However, such cases have limitations regarding what police officers are allowed to do in situations like this.
The Defendant Gave Consent
If a defendant feels they have nothing to hide or that they can be helpful to law enforcement officers by allowing access to their phones, they can give their consent.
This must be given willingly and freely, though. Also, there is a possibility that anything found on the phone could be used against the defendant, which is something worth considering.
The Defendant Is on Probation or Parole
There are certain terms and conditions that those on parole or probation have to adhere to. One of these may state that the defendant has to agree to a warrantless search. If that is the case, police might be able to search the defendant's phone without a warrant.
Other Exceptions to the Search Warrant Requirement
Other situations that may allow police officers to bypass the search warrant requirement are as follows:
- The device was abandoned (a police officer may access the phone to find the owner)
- In case of an emergency in which intervention is needed
- Consent from the original owner of a stolen phone
- There is a wiretap order
How Long Can a Police Officer Keep the Phone?
Once the phone has been taken, for example, after consent is given, the police officers may claim that they want to keep it until they obtain a warrant. In this case, it means they cannot hold the phone indefinitely.
If a reasonable amount of time to obtain a valid search warrant has passed, the phone needs to be returned to the owner.
In cases where the defendant's phone has been kept for too long without any probable cause or a warrant, seeking the assistance of a good lawyer may be the best option. They can also advise on how long before an unpaid ticket becomes a warrant in CA.
What If the Police Conduct a Warrantless Search?
If the police conduct a warrantless search without a court order, a lawyer can move to suppress evidence from an unlawful search (PC 1538.5). If the motion is granted, the prosecution may be unable to proceed.
How Can a Criminal Defense Lawyer Help?
Privacy rights are a big topic in California. The Fourth Amendment rights are there to protect U.S. citizens against unlawful searches and seizures by police.
If these rights have been violated, Goss Law is ready to fight tooth and nail for their client. A free consultation can be booked with attorney Blair Goss today.
Need help with a case in Sacramento? Read about my criminal defense work, or tell me what happened.
This post is general information about California law, not legal advice about your situation. Laws change, and every case is different. For advice about your case, talk to a lawyer.