Are Smart Phone and Other Similar Electronic Devices Subject to Police Search Without a Search Warrant?

Posted by Perry de Marco, Sr. on 21 January 2014

The fourth amendment to the United States Constitution as well and Article 1 section 8 of the Pennsylvania Constitution protect citizens from unreasonable searches and seizures. Probably no other area of the law has been the subject of such extensive trial court and appellate court decisions with regard to the interpretation of exactly what the fourth amendment means and what is protects. The courts have been forced to re-interpret the protections of the fourth amendment as a result of the tremendous advancement in technology such as smart phones, tablets, computers, etcetera. Many people foolishly choose to record and or photograph evidence that can be used against them by the utilization of these devices. Increasingly, police seize these devices and obtain evidence that is used in court to obtain convictions against such persons. The courts throughout the country are now divided as to whether or not the police are required to obtain a search warrant in order to seize the devices and in order to search their contents for incriminating evidence. Probable cause has been defined as the existence of sufficient facts to warrant a prudent police officer in the belief that incriminating evidence may be found in the place or the item to be searched.

Some courts have held that if the police do not have a search warrant prior to seizing and searching a telephone or computer, such evidence cannot be utilized against the defendant in court. Other courts have held to the contrary. As a result of the disagreement, among the courts the Supreme Court of the United States has now decided to undertake two cases dealing with this issue. One such case is United States v. Wurie. This a Federal case where a search of a defendant’s flip telephone enabled the agents to convict the defendant of various narcotic and firearms convictions. The first circuit court of appeals overturned this conviction and that case will now be decided by the Supreme Court of the United States. The second case was a case arising out of the state of California, Riley v. California, in which the police utilized video, text message and other evidence seized from the defendants smart phone in order to convict him of weapons offenses. In that case, that conviction was upheld by the California Appellate Courts. Hopefully, the Supreme Court of the United States will resolve these issues once and for all. Federal law supercedes State law with regard to protections guaranteed to citizens of the United States in the Bill of Rights and specifically by the forth amendment. State Courts can always provide their own citizens with protections greater than the Federal protections but they cannot deny their citizens less protection than that provided by the Federal Constitution.

In a related case, United States v. Jones the Supreme Court, in 2012, decided that authorities cannot attach a GPS tracking device to a vehicle without first applying for a search warrant.

In another interesting opinion, Kyllo v.United States, the Supreme Court of the United States ruled that the use of a thermal imaging device from a public vantage point which monitored radiation from the defendant’s home also constituted a search within the meaning of the fourth amendment. In that case, the Police used a heat monitor which revealed a excessive amount of heat emanating from the defendants home and on that basis then obtained a search warrant to enter the home where they found a marijuana grow operation. The Supreme Court reversed that conviction holding that a warrant was necessary not only to enter the home but to operate the heat monitoring equipment outside the home. It should be noted that this equipment never actually touched the house.

The interesting factor in all of these cases is that the application of the forth amendment must now be re-analyzed and re-interpreted to keep up with modern technology. One can only imagine how far this body of law will evolve, especially in view of ever emerging advancements in technology such as satellite technology. The beauty of our Constitutional system of law is that it can adapt and evolve itself to respond to these advancing technologies.