Cell Phone Searches as Evidence

Originally published by Walter James.

Smartphones are everywhere. One question regarding smart phones is whether law enforcement can force an individual to provide the password or personal identification number to unlock your phone.  So far, most courts say no.  The reasoning is that having to provide your passcode is tantamount to self-incriminating testimony.

Generally speaking, law enforcement is required to obtain a search warrant before it can search electronic devices. Even the use of biometric information to unlock a phone still requires a search warrant to access the smart phone (you may be compelled to give up your fingerprint under certain “reasonable suspicion” conditions and that could also apply to facial recognition).  The warrantless searching of cellphones was ruled unconstitutional by the SCOTUS in 2014, see Riley v. California, 134 S.Ct. 2473 (2014).  Remember, however, there is the so-called “border search” exception which allows federal authorities to conduct searches within one hundred (100) miles of a U.S. border without a search warrant, though and that includes smartphones.  I know of no case where this has been applied in an environmental criminal investigation; however, it is not beyond the pale.  Ask yourself if your facility is within one hundred (100) miles of a US border.

This also becomes important because of the prevalence of individuals bringing their smartphone to work and the use of their personal smartphone for company business.

So, how do you protect your company and yourself from a warrantless search of your smartphone? Require the criminal investigator to have a search warrant.  When the search warrant is presented, get a copy of it and READ IT.  If it does not allow for the collection of cell phones and cell phone pass codes, do not give up your cell phone or the pass code.  Second, your company needs to have a policy in place that requires the employee to use the “pass code” setting on the smartphone to set up a pass code (preferably a six-digit pass code) to unlock the cell phone.  Without a warrant, you cannot be compelled to provide the pass code (this is different than facial recognition or thumbprint).  So be forewarned.

More later.

As always, feel free to contact me at walter.james@jamespllc.com

WDJiii

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