March 2, 2012
Can Law Officers Search Your Cellphone Without A Warrant?
A US federal appeals court on Wednesday ruled that law officers have the right to search a cellphone for its phone number without a warrant, following a recent Indiana case in which prosecutors used evidence that police found on cellphones during an arrest.
Abel Flores-Lopez, the arrestee in that case, said police acted illegally when they searched his cellphone for its number. However, the US Court of Appeals for the Seventh Circuit said in its ruling that even if searching a phone required a warrant, searching simply for its number is so “minimally invasive” that police do not need to obtain one.Judge Richard Posner, one of the three judges hearing the case, explained that since the phone was readily available during the arrest, they should be entitled to turn it on to find the number, just as if they are entitled to open a pocket diary to obtain the owner´s address.
The Indiana officers found a number of cellphones at the scene of the arrest, which was a drug bust. Their search of the phone numbers paved way for the government to subpoena the owners´ call histories, linking them to the drug-selling scheme.
The three-judge panel said the invasion of privacy was so slight that the police´s actions did not violate the suspects´ Fourth Amendment -- prohibiting unreasonable search and seizure.
The case gave the court a reason to further examine just how far police can go when it comes to searching electronic devices.
“Lurking behind this issue is the question whether and when a laptop or desktop computer, tablet, or other type of computer (whether called a ℠computer´ or not) can be searched without a warrant,” wrote Posner.
Posner made an example of the iCam, a mobile app that allows a user to use his or her cellphone to keep an eye on the goings-on at home through a computer webcam, saying that “at the touch of a button, a cell phone search” can become a home search.
The court declined to elaborate on where to draw the line, however, between what is considered a reasonable search and invasion of privacy. But it did say such a decision might be influenced both by how invasive the search is and whether it is justified by an urgent need to preserve evidence or is a legitimate safety concern.
Prosecutors argued that in an age when people can erase the data on their phones easily, officers are under pressure to obtain data before it is destroyed. The court, however, said that the actual risk that one of the suspects would have been able to destroy the phone´s contents was minimal in this case. But so was the invasion of privacy, limited to the phone numbers.
A similar issue occurred in 2004 during a marijuana investigation by San Francisco police. They had searched the mobile phones of three men they arrested without first requesting a warrant. A US District Judge later ruled that the department´s warrantless search was not permissible in that case.
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