Here’s a great article by Nima Haddadi, a Los Angeles DUI Lawyer. It’s hard to imagine getting by without a smartphone. Many people carry on as part of their employment responsibilities as well as for personal use. While the phones are indispensable to many people, it pays to understand that the information contained on the phone is not protected if an individual is arrested. Here is what you need to know about the rights of law enforcement officers to read texts and other documents saved on a smartphone.
Not Privileged or Protected Information
While several legal challenges have found their ways through different state courts, the rulings have confirmed that text messages do not fall under the category of private property. Many courts cite the fact that text messages are something that is exchanged through a utility and not a possession that is kept in the home.
Since polices do have the right to access and review non-private information as part of an investigation, they do have the ability to review all text messages. That includes messages made to and received from friends, relatives, and business associates. Taking things one step further, any information collected from those text messages can be used as evidence if the matter goes to court.
But What About the Fourth Amendment?
Some people believe that their text messages and any emails contained on their smartphones are automatically protected by the Fourth Amendment of the United States Constitution. That amendment has to do with the search and seizure of private property that is found on the person or in the home of the individual under arrest. With physical property, it’s necessary to obtain a warrant before entering the home to conduct a search.
The courts have ruled that the Fourth Amendment does not apply to text messages. Electronic communications are not considered the same as physical items that can be tucked into a drawer or placed on a closet shelf. The rationale is that electronic messages of any type, whether transmitted using a smartphone, email, or via a social media site, are essentially being broadcast to the world at large. This makes those communications free for the perusal of a law enforcement officer who is actively searching for anything that would strengthen the case against the arrested individual or possibly make it clear the charges should be dropped.
What About Wiretapping Laws?
Some people belive that wiretapping laws protect the text messages they choose to house on their smartphones. Current laws in this regard have to do with exchanges that are in progress. The nature of text messages makes them historical data from the very second they are sent or received. In other words, while the recipient just received a response to a text a couple of minutes ago and it has been opened, it is not legally considered to be in the same class as a telephone conversation that is in progress.
Keep in mind there is one caveat here. If the text message has not been opened yet, there is a bit of gray area about the status. The controversy has to do with whether the unopened text message has completed the reception process or if it is still considered in transit until the recipient opens and reads the message. Even so, the matter of an unopened message will be resolved once the warrant is obtained. At that point, even those messages can be legally inspected by law enforcement.
Are There Limits?
There are some jurisdictions that allow the police to read text messages and other electronic communications saved on a smartphone for what is interpreted as a reasonable amount of time. That could be as long as an hour and a half or however long it takes to obtain a warrant to search the home and anything the arrested party owns. In the event that the police are attempting to obtain warrants to search the home of the arrested party, it is possible to include more time to search all electronic devices. The information found on the smartphone would still be available for scrutiny along with any electronic documents found on computers or tablets in the individuals’ home.
The best advice is to assume that the text messages found on a smartphone will be subject to a search by the police. Be prepared to surrender the phone at the time of the arrest and for any information found in the messages to be part of the questioning that will ensue.