The is article is written by Arkady Bukh, a criminal defense lawyer in New York.
In U.S.A. this issue is still open at least on the Federal level. However, many of the
states have needed to make decisions on what Fourth amendment protections apply
to cell phone text messages. The questions being asked include whether
the police can just pick up a cell phone and look at it contents without a
warrant; can they even pick up the cell phone without a warrant, are the text
messages to and from that particular phone protected private material of the
cell phone owner, or even
are they protected private material of the person who
sent the message.
The California Supreme Court held in their 2011
decision in People v. Diaz that the
search of text messages on a cell phone which had been on the defendant at the
time of his arrest was a valid warrantless search. The majority opinion argued that this search
was viable because it was "a search incident to lawful arrest" and
cited a US Supreme Court case United
States v. Robinson. The Court stated
that such a search of the person of an arrestee was correct as the defendant
may well have weapons and other items of danger to law enforcement on their
person. Therefore, it was correct for
the police to seize the cellphone. The
defense and the dissent however argue that it was illegal to open the cell
phone and look at its contents as there was not likely a weapon there. The defense argues that a cell phone holds extreme
amount of information and should not be searched without a warrant. It also appears that the police had time to
get a warrant as they didn't search the phone until after the arrest.
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Cell phone Messaging Meme |
A case that holds a different view is one that has
been widely reported and comes out of the Superior Court of the State of Rhode
Island, State of Rhode Island v. Michael
Patino. In a decision handed down on
September 7, 2012, Superior Court Judge Judith Savage held that any evidence
gained by the police by reading messages on a particular LG cell phone was
tainted and was thrown out. She also had
some severe complaints about procedures by the local police department that
damaged other evidence. This being a
murder case, the decision was quite controversial and the Judge wrote a
carefully thought out 190 page decision.
Part of her argument seems to follow the thinking of the dissent in Diaz in that a cell phone holds an
almost infinite amount of information and before that information is searched a
warrant should be obtained. Part of this
opinion relies on US v. Katz in which
the Supreme Court held that the Fourth Amendment protects the person not the
method of communication and thus, he didn't lose his right to privacy because
his messages were sent to a place they might be seen. The opinion goes on to state the US Supreme
implied a similar message in their decision in Ontario v. Quon that although in the case the messages could be
read because it was on the employer's pager and sent by an employee, but did
not say that a person had no right to privacy in his own text messages on his
own device. The Patino case of course will now go to the RI Supreme Court on
Appeal.
These two differing opinions become even more
important now because it is an example of how divided the state courts are on
this issue and how they need more guidance from the Federal government either
in legislation or by a Supreme court decision.
This week a Senate committee has been considering some tweaking of the
Electronic Communications Privacy Act, in which government has monitored
digital communications including cell phone information. Will the recent court decisions have any
effect on the Senate committee? Well they should surely look at them. This is an area that is becoming more and
more important as people eschew pencil and paper and text to each other on even
a minute to minute basis. What is
protected by the Fourth Amendment and what is not? At the moment only the local courts can make
their individual and varying decisions.
The is article is written by Arkady Bukh, a criminal defense lawyer in New York.
Arkady Bukh is a criminal defense
lawyer in New York, founder of Bukh Law Firm P.C. (14 Wall Street,
New York NY 10005, (212) 729-1632). The office is a boutique criminal firm
handling high-profile white collar, Federal, and International extradition
cases.
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