Posted by Perry de Marco, Sr. on 5 November 2014

Today there seems to be an unrelenting temptation that we all share to input the most intimate details of our lives into our cellular devices. Unfortunately, we do this under circumstances where we have absolutely no idea where the information actually ends up and who may have access to it wether it be Government agencies or criminal hackers. Smartphones and other electronic devices are tremendous resources considering all of the communication storage and functionality that they provide. Increasingly however they have become the main source of incriminating evidence against their owners and many times are the basis upon which a criminal conviction is achieved. The Fourth Amendment to the United States Constitution as well as corresponding provisions of State Constitutions, protect persons from unreasonable searches and seizures of their persons, houses, papers and effects. It goes without saying that today, digital information detailing our entire lives, business and personal are stored in electronic devices most of which are interfaced with our cell phones. As predicted, the Supreme Court of the United States, in an opinion issued by Chief Justice Roberts, has ruled that police generally, may not without a warrant, search digital information on a cell phone seized from an individual who has been arrested. David Leon Riley, Petitioner v. California, 2014 WL 2864483, Nos. 13-132 and No. 13-212, United States v. Wurie affirming the United States Court of Appeals for the First Circuit, 728 F. 3d 1 (June 25, 2014). This decision however should not cause those to rest easy who would be disposed to store criminal or other incriminating information on their electronic devices. This decision prohibits a forensic search of the digital information contained in the device without a warrant. Furthermore, the prohibition is not absolute, since it leaves open the possibility that a search without a warrant could still be justified if the police can demonstrate what the law regards as exigent circumstances, such as reasons that the police can offer to justify not obtaining a search warrant due to the existence of some dangerous or emergent situation that might excuse the warrant requirement. The warrant requirement is also many times circumvented when the suspect consents to a search of the cellular device. Such consent should never be given without consulting with competent counsel. In my many years of practicing Criminal Law, I never cease to be amazed at those suspects, even arrested police officers, who cavalierly volunteer to permit the police to search their phones or other personal effects without a warrant, as if they have nothing to hide when indeed they have everything to hide. Additionally, well trained and clever police officers are extremely adept in convincing suspects to consent to a search without a warrant. Believe it, being arrested is a much scarier encounter than is depicted on television or the movies. 

On a related but frequently occurring issue, a Circuit Court Judge in Virginia ruled that a criminal defendant can be compelled to give up his fingerprint, but not his pass code, to allow police to open and search his cell phone. In that case the police suspected that the cell phone may have recorded evidence of a fight between the defendant and his girlfriend. Judge Steven C. Frucci ruled this week that giving police a fingerprint is akin to providing a DNA or handwriting sample or an actual key, which the law permits. A pass code, though, requires the defendant to divulge knowledge, which the Fifth Amendment protects against, according to Frucci's written opinion. It will be interesting to see how the Pennsylvania Courts resolve this issue. We have the exact same issue in one of our own cases. The obvious conclusion is that people should not be committing crimes in the first place and should not be storing criminal information on their electronic devices but in the event of an arrest, or even what appears to be a casual police inquiry, one should never consent to a search of these devices or relinquish a pass code without first consulting with competent counsel. We at the law Offices of Perry de Marco, Sr. are always ready to assist in such situations, it only takes a phone call to have counsel ready to help. 215-563-8000.