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What evidence can police access from your cell?

Ratified in 1791, the drafters of the Fourth Amendment could never have imagined the role cellphones would play our 2017 day-to-day lives. The "right of the people to be secure in their persons, house, papers and effects" was to meant to prohibit "general warrants" for broad search.

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To have "probable cause" to obtain a warrant, police need to be able to explain why it is they believe someone has committed a crime. Does a privacy interest extend to cell-tower location data gathered by phone companies? Are Fourth Amendment rights violated when a phone company shares these details with law enforcement? The U.S. Supreme Court justices will take up these questions in their next term.

Carpenter v. United States

In 2011, the FBI analyzed 127 days of cell tower data to place Mr. Carpenter near the scenes of a series of armed robberies. Law enforcement officers were able to retrieve the data under the 1986 Stored Communications Act. This law permits phone companies to share information when "specific and articulable facts" are "relevant and material" to a criminal investigation.

This situation is not unique or isolated. Staggering volumes of cell-tower data are requested by law enforcement as they investigate crimes. In a 12-month span, AT&T received 75,302 requests according to The Economist. In Mr. Carpenter's case, the attorneys are asking the Court to "re-examine traditional notions of privacy in the digital age."

Warrant required for smartphone searches

The last time cellphone evidence went up to the high court was 2014. In that case, Riley v. California, Chief Justice John Roberts wrote that a smartphone search could reveal even more than an "exhaustive search of a home," because of the details contained on the device from "mundane to intimate." In that case, the court said that police needed a warrant to search the smartphone of a suspect.

Because technology has changed so quickly over the last several decades it might be time for the justices to reconsider what Justice Louis Brandeis called "the right to be left alone."

If charged with a crime, immediately speak to a criminal law attorney. This is the only way to fully investigate whether defenses might be available based on your unique circumstances and any errors or omission in an investigation.

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