Saturday, June 28, 2014
Defense attorneys call SCOTUS ruling breath of fresh air
Posted: Wednesday, June 25, 2014
When Lower Southampton police executed a search warrant earlier this year at the home of two brothers suspected of drug dealing, the officers discovered one of the men’s smartphones in a bedroom.
While the warrant covered the contents of the house, Detective Shane Hearn waited until he obtained a separate search warrant for the phone before examining it. Police later found the phone contained numerous text messages between one suspect and an undercover officer involving marijuana buys, which led to criminal charges.
“It is indeed a privacy issue and the best way to go about it legally is getting a search warrant,” Hearn said.
Under a new U.S. Supreme Court ruling, law enforcement agencies are now required to obtain warrants to search cellphones of criminal suspects. The high court’s decision Wednesday has been described as a major statement on privacy rights in an age where vast amounts of personal data are stored in electronic devices.
Typically, police are interested in cellphone contents when conducting drug-related investigations, particularly to check contacts seeking evidence involving other dealers and customers, police officials said.
Lower Southampton’s diligence with obtaining search warrants to examine cellphones isn’t unusual, according to local law enforcement officials.
Falls Police Sgt. Christopher Clark, who handles drug investigations, said obtaining search warrants for cellphones has been the standard operating procedure for as long as he can remember in his department.
“This is not anything new for Pennsylvania,” added Bensalem Director of Public Safety Fred Harran.
The Bucks County District Attorney’s Office has required local police obtain search warrants to examine cellphone contents for many years.
“So long that it has become standard police practice for law enforcement to procure a search warrant if probable cause exists to search the contents of a cellphone or other media device related to a criminal investigation,” Bucks County Deputy District Attorney Robert James said.
Acting Bristol Township Police Chief John Godzieba pointed out that Pennsylvania is usually more conservative when it comes to interpreting case law, and usually takes a more narrow approach. In his police department, which has an active narcotics unit, search warrants are routinely sought for cellphones, unless the officer obtains the owner’s permission to search it.
“There is no reason to break the law to enforce the law,” he said.
Bucks prosecutor James agreed that there is an expectation of privacy since modern smartphones no longer just contain phone numbers but the “nuts and bolts of most folks’ lives.”
“However, if police believe the fruits or evidence of a crime exists in the cellphone, the phone can be seized, and once a warrant is procured, it can be searched,” he added.
But some defense attorneys say that search warrants for cellphones are unusual. Police usually try to get consent from a suspect to search a phone, similar to what police do with car searchers, according to local defense attorneys.
Middletown attorney Niels Ericksen says he can count on one hand the number of times he’s seen police obtain a warrant unless it involves call, text message or cell tower data.
“Unlike a car or wallet or pant pocket, or purse, a phone can never contain contraband requiring immediate search. There is always time for a warrant,” Ericksen said. “In my experience, police struggle with how to look at cellphones, and have no clue on the constitutional obligations. Hopefully, this case provides guidance.
Newtown Township defense attorney Keith Bidlingmaier also had clients tell him that not only did police search their phones without a warrant, but answered their cellphones after confiscating them to gain additional information.
He added that warrantless searches seem to occur before charges are filed and a district attorney is involved, which is one reason he called the Supreme Court ruling a “breath of fresh air.”
“Regardless of whether it’s illegal or legal material on one’s cellphone, police shouldn’t have the right to search it without court approval,” he added.