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A common question people ask is what can police do with my cell phone. This question typically includes topics like: when can police take my cell phone?; when can police search my cell phone?; and sometimes, when can police track/ping my cell phone?
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Technology has ushered in a new era of search and seizure issues and privacy concerns. Indeed, law enforcement’s ability to obtain evidence against a suspect is at an all-time high. Specifically, police have access to a person’s entire life via cell phone analysis. For that reason alone, police have an interest in getting into a person’s cell phone. Evidence found during a “cell phone dump” (as law enforcement calls it) is admissible against the owner. Again, a cell phone is a wealth of information for law enforcement. As such, police will make attempts to justify a search of a cell phone.
CAN POLICE SEARCH MY CELL PHONE WITHOUT A WARRANT?
The 4th Amendment to the United States Constitution protects people from “unreasonable searches and seizures” by the government. Indeed, the 4th Amendment is not a guarantee against all government action or searches and seizures. Rather, the 4th Amendment protects against “unreasonable” searches and seizures. What is an “unreasonable search”? Essentially, an “unreasonable search” is a “warrantless search.” Specifically, a “warrantless search” is presumptively unreasonable, and requires justification by law enforcement. However, due to the “effervescent” nature of digital evidence and feasibility to manipulate law enforcement must act quickly.
Law enforcement may not search through a person’s cell phone without a warrant unless a couple of circumstances exist. First, if a person consents, which is one of the biggest mistakes people under investigation make. And second, an exigent circumstance exists (i.e., remote “wiping”; imminent crime prevention). These are the only two situations law enforcement may search a cell phone without a search warrant. Another consent-type issue that may come up with warrantless cell phone searches concerns passcode protected phones. Police can subpoena or obtain a warrant and retrieve most digital information contained in the cell phone storage or cloud. This is procured through a third-party provider. However, for text messages and some other personal information, law enforcement must get this from the cell phone itself. If the cell phone is passcode protected, this can be a difficult situation for police.
If the police have a warrant and the tools to bypass the passcode they will be able to collect evidence from the phone. However, if the police do not have the necessary “hacking” equipment, they will ask the cell phone owner for the code. A person should never provide this code and assert their Fifth Amendment right to remain silent. All warrantless searches are presumptively unreasonable. And the State must be able to justify their actions if they choose to search a cell phone without a warrant. Issues contesting a warrantless search must be timely filed and properly framed in a pretrial motion to suppress. If the trial court agrees and finds the warrantless search of the cell phone was not justified and a warrant was required, all evidence collected from it is a “fruit of the poisonous tree”. This means the evidence is not admissible at trial. It is important to not consent to law enforcement searches and requests. Along with an exigent circumstance, consent is the only way police may search through a cell phone without a warrant.
CAN POLICE TRACK/PING MY CELL PHONE WITHOUT A WARRANT?
Can Police track cell phones without warrants? Generally, the police cannot track a cell phone location without a warrant. However, limited exceptions exist. The digital era has created several issues surrounding law enforcement access and the 4th Amendment. Specifically, this includes a balance between privacy interests and criminal arrests and prosecutions. Indeed, a person has a reasonable expectation of privacy in their cell phone location information. As such, a search warrant supported by probable cause is required. The United States Supreme Court took this issue up in Carpenter v. United States. The basic holding of Carpenter is police cannot track a cell phone location information without a search warrant.
The 4th Amendment to the United States Constitution prohibits the government from engaging in unreasonable searches and seizures. Indeed, the 4th Amendment requires police to obtain a search warrant prior to conducting a search. And a search warrant issues only if supported by probable cause. As such, police must obtain a warrant to track a cell phone. This seems like a fairly simple rule. But, limited exceptions allowing warrantless searches exist. These exceptions are: (1) exigent circumstances exist; and (2) consent.
Exigent Circumstances Allows Warrantless Tracking of Cell Phones
The government may track a cell phone when exigent circumstances exist. The United States Supreme Court recognizes police may search without a warrant if: (1) an imminent threat of harm exists; and (2) there is no time to obtain a warrant. This is the “emergency aid exception.” Examples where this exception applies include law enforcement trying to locate a missing/wanted person. This includes victims and suspects.
Indeed, the “emergency aid exception” is based on exigent circumstances. “Exigent circumstances” is a common term justifying warrantless action by law enforcement. Obviously, “exigency” requires a risk of immediate harm to public or individual safety. In these situations, obtaining a warrant places the public at risk. Simply put, situations exist where police must act quickly without warrants to save people’s lives. Warrantless cell phone tracking is a situation this occurs.
It is not difficult to see the importance in allowing police to act quickly without warrants. United States Appellate Courts have consistently place public safety over individual rights. Should individual rights give way to public safety interests? That answer sometimes depends on which side of the aisle a person is on in the courtroom. Nevertheless, courts routinely allow police to circumvent the warrant requirement when exigent circumstances threatening public or another individual are present.
It is important to note “exigent circumstances” and the “public aid exception” are narrow and only apply in limited situations. Indeed, the State has the burden of proving that the threat is imminent and immediate. And there was no time to obtain a warrant.
Consent Allows Police to Track Cell Phone Without a Warrant
Additionally, if a person consents to the police tracking their cell phone, a warrant may not be required.