By Richard J. Lehmann – New Hampshire Criminal Attorney
The expanding use of technology in our lives has challenged the law to address issues that were unimaginable to the drafters of the Constitution and the Bill of Rights. The Fourth Amendment protects us from unreasonable searches and seizures by the government. A recent decision by Judge Posner, a highly regarded judge on the Seventh Circuit Court of Appeals in Chicago, addressed the question of whether the police may conduct a search without a warrant and look at the recently called numbers list in an arrested person’s cell phone.
The case United States v. Abel Flores-Lopez was a federal drug prosecution. Police arrested the defendant and seized his cell phone. Then without a warrant, the police searched the cell phone’s listing of recently called numbers. By learning those numbers, police were able to conduct a further investigation that ultimately implicated the defendant in additional drug activity, for which he was eventually convicted and sentenced to prison.
The defendant tried to have the evidence kept out or suppressed, claiming that the warrantless search of the cell phone violated his right to be free from unreasonable seizure under the Fourth Amendment.
The court started by recognizing that a cell phone is really a computer. It is also, the court wrote. “a diary writ large.” Despite acknowledging that a warrant is required to search a computer or to read someone’s diary, and that computers and diaries can contain huge amounts of personal information, that the degree of intrusion, combined with the fact that many cell phones can be remotely “wiped” clean of any information at all, justified allowing the police to conduct warrantless searches of lists of recently called numbers.
Privacy and the right to remain free from unreasonable searches and seizure is not just important to drug dealers. All of us have an interest in protecting our privacy from government intrusion. The people who wrote our Constitution understood this.
Just how far the police can go in searching your electronic devices for information is a question that will have to be resolved through the development of precedent in this rapidly evolving, specialized field. Anyone who finds themselves caught up in a similar situation should immediately consult with a lawyer with expertise in this area, such as the criminal and civil rights lawyers at Douglas, Leonard & Garvey, P.C. at (603) 288-1403or fill out our online contact form.