FOURTH AMENDMENT PROTECTION
The United States Constitution provides protections in the Bill of the Rights. In particular, the Fourth Amendment provides for the protection of privacy from intrusions or searches from the government. The amendment states that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Do we have an expectation of privacy to our cell phones? Most people have a password to prevent others from accessing their cell phone. So yes, I would say that we do have an expectation of privacy to our cell phones. With the current cell phones that we all use, they are the virtual equivalent of our desktops.
In a landmark decision in Riley v. California, the United States Supreme Court held unanimously that the warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional. In order to obtain a warrant, the police must have probable cause. In order to have probable cause the police must articulate why they believe that the search will uncover criminal activity or contraband. They must have legally sufficient reasons to believe a search is necessary.
Courts enforce the Fourth Amendment through the use of the exclusionary rule. If evidence is obtained in violation of the Fourth Amendment then a judge can rule that it is excluded or inadmissible in court. In other words, if the police violate a person’s rights’ by conducting an illegal search without probable cause, then the evidence cannot be used against the accused. An experienced criminal defense lawyer can file a motion to suppress evidence to have the evidence excluded. This often leads to dismissals. Without evidence the government cannot secure convictions.
However, the police can obtain information from a cell phone without a warrant or without obtaining your phone. One of the most common tactics is to subpoena cell phone records from a suspect’s cell phone provider. The cell phone records can help the police determine who the suspect is talking to and when the calls are made. Further, the state may seek cell phone locations to determine where a suspect may have been. These records do not determine guilt or innocence and should be vigorously contested. A skilled lawyer can defend your rights and develop a winning defense.
If you or someone you know has been the subject of a possible illegal search or seizure, you are in need of an experienced Houston Criminal Defense Attorney. Texas Board Certified Attorney Mario Madrid has the experience to help. Contact his office today at (713) 877-9400.