A warrantless cell phone search is now illegal, and for good reason. Read
on to learn more about a recent legal decision.
Social media has impacted many aspects of modern life. According to the
Pew Research Center, almost three-quarters of online adults use social
networking sites, such as Facebook, Twitter, Instagram, MySpace, Pinterest
or LinkedIn. For many, social media is entertainment, providing another
way to socialize. However, sites like LinkedIn are increasingly being
used for both professional networking by job seekers, as well as informal
background checks by prospective employers.
The popularity of such sites may be partly dependent on the ease of accessibility:
Pew Research Center data also indicates that two-thirds of users under the age of 30 access social
networking sites on their smartphones. Although the percentages decrease
with user age, even half of those in the age bracket of 50-and-under use
their smartphones for social media.
Police work and social media
As might be expected, law enforcement authorities have taken note of this
trend. Some officials have used cellphone towers to obtain locational
data about individuals under criminal investigation, potentially placing
an accused at the scene of any alleged crimes. Other authorities may be
tempted to search an individual’s smartphone when he or she is arrested.
For an attorney who focuses on
criminal defense, such practices most likely raise red flags. The Fourth Amendment affords
an individual protection against unreasonable searches and seizures. In
practice, that protection usually requires officers to obtain a warrant
supported by probable cause before conducting a search.
Social media, privacy and warrantless searches
Yet how does the Fourth Amendment apply to smartphones and social media?
Most users probably have an expectation of privacy over the content on
their smartphones. In addition, although many devices are GPS-equipped,
users would probably regard authorities tracking their location data as
an invasion of privacy.
Lower courts have been divided in their interpretations of the Fourth Amendment’s
application to cell phone location data. However, the U.S. Supreme Court
recently ruled that a warrant is required before searching the cellphone
contents of individuals placed under arrest. In the opinion, Chief Justice
John G. Roberts Jr. compared the information contained on many users’
smartphones to that on small computers.
Yet technology seems to continually present new questions of law and privacy.
In a case to be argued before the Supreme Court in the fall, a man was
posting language on Facebook that his former wife perceived as threats.
One thing is certain: The procedures that are used during an investigation
or leading up to an arrest are not inconsequential. For example, evidence
obtained in circumvention of the Fourth Amendment’s procedural requirements
could be deemed inadmissible in a criminal trial. That, in turn, could
leave prosecutors without enough evidence to make their case and convince
jurors that the accused is guilty beyond a reasonable doubt.
Keywords: Fourth Amendment, warrantless search, search and seizure, due
process, procedural rights, criminal defense, warrant, probable cause