Over the past decade, cell phones have evolved from an on-the-go communication device to a portable mini-computer that stores nearly all of our life’s data, photos, messages, banking information, and other intensely personal details. In some ways, smartphones have become extensions of ourselves.
For this reason, law enforcement officers will almost always want to know more about the information a person keeps on their phone if they are under criminal investigation. While our smartphones are a fun and useful way to stay connected with the world around us, they are also an absolute treasure trove of vulnerable personal information that police can use against you in a court of law.
For example, your smartphone will normally contain:
- Personal pictures. Photos of yourself with friends and relatives, as well as photos that reveal location information and certain activities – time-stamped to the days and times the photo was snapped.
- Text messages and messages sent through a variety of apps can reveal private discussions between yourself and others. When viewed by a third party or law enforcement agency, these messages can be mildly embarrassing at best and criminally incriminating at worst.
- Personal and business data that you store on your phone can be viewed by others and create problems if viewed by the wrong people. Law enforcement and prosecutors often seek this data to establish what you might have been doing and why.
- Geotagging Data. Most people know about the problems that photos, messages, and other data can cause. What most people don’t remember – or don’t know – is that our phones track almost every move we make through “geotagging”. This is the information our phones use when we use a navigation app such as Google Maps, or the tools we use to search for a restaurant nearby. Unless a user goes into their phone’s settings to disable certain geotagging functions, our phones can tell law enforcement where we were and when – even how fast we were driving – on a date in question.
When Can Law Enforcement View Contents of a Cell Phone?
Law enforcement may be able to obtain cell phone evidence through a search warrant if they can describe with “reasonable particularity” what the files may be, and how they would be relevant to their criminal investigation. For example, if investigators can identify certain types of communication or data that they reasonably believe they will find on the phone, they may be able to get a search warrant authorized.
Without a warrant, there are limits to what law enforcement can do. The Fifth Amendment forbids a governmentally-compelled testimonial communication that tends to incriminate the communicator. A prime example of this is requiring a suspect to provide the password to their phone, or use a fingerprint or face ID to unlock the phone.
Florida courts have found this to be a self-incriminating communication that falls within Fifth Amendment protection. “Forcing a defendant to disclose a password, whether by speaking it, writing it down, or physically entering it into a cell phone, compels information from that person’s mind and thereby falls within the core of what constitutes a testimonial disclosure.” Pollard v. State, 287 So. 3d 649 (Fla. 1st DCA 2019).
Compelled disclosure of a phone password or unlocking mechanism can raise complex legal issues and potential problems for a prosecutor’s case if phone data was obtained the wrong way. If you have questions about how police handled your phone – or about requests they are currently making, you should consult an experienced Florida criminal defense attorney as soon as possible.
The Tampa Criminal Defense Attorneys at Trombley & Hanes Know Your Constitutional Rights and What Police Can Lawfully Search
The same Constitutional protections that apply to ourselves, our homes, and our vehicles extend to the phones we keep in our pockets as well. If you feel your phone’s data was unreasonably searched – or might be – consult a legal professional as soon as you can. At Trombley & Hanes, our Tampa criminal defense attorneys have years of legal experience in a variety of complex situations involving the defendant’s Constitutional rights. If you have any questions about your case and any searches or seizures, call our office at 813-229-7918, or visit our firm online today.
Source:
casetext.com/case/pollard-v-state-153
