CELL PHONE SEARCHES LE­GAL?

Public News (Houston) - - FRONT PAGE - by Matt DeLuca matt@mattdelu­calaw.com Please let me know if you have any ques­tions or com­ments about this or any other le­gal is­sue. You can reach me by e-mail at matt@mattdelu­calaw.com.

Most cit­i­zens are raised with a healthy re­spect for law en­force­ment. We rely on law en­force­ment to do the right thing to pro­tect us. But it’s frus­trat­ing to hear when cer­tain of­fi­cers take ad­van­tage of their po­si­tion and over­step their au­thor­ity. If we’re be­ing re­al­is­tic, I think most cit­i­zens would al­low a police of­fi­cer to search their pos­ses­sions if asked. But I be­lieve that’s partly be­cause most cit­i­zens sim­ply do not un­der­stand that they have a right to say no.

So let’s say a police of­fi­cer stops you in your ve­hi­cle or even while you’re walk­ing down the side­walk, and in the process of his stop he asks if he can see your cell phone. Is he al­lowed to do that? The short an­swer is that a police of­fi­cer can­not sim­ply or­der you to give up your cell phone for search. Last sum­mer, the Supreme Court of the United States ruled that police could not gen­er­ally search cell phones with­out first get­ting a war­rant. In do­ing so, the Court ac­knowl­edged that cell phones today are not sim­ply por­ta­ble de­vices used to make tele­phone calls. Cell phones hold a lot of per­sonal in­for­ma­tion. I for one would not feel com­fort­able al­low­ing any stranger, es­pe­cially law en­force­ment, ac­cess to my per­sonal and pri­vate in­for­ma­tion.

But in what cir­cum­stances can a police of­fi­cer search my cell phone? Gen­er­ally there are two cir­cum­stances – by per­mis­sion or by war­rant. If you are stopped or de­tained by a police of­fi­cer, that of­fi­cer may only search your cell phone if he has a valid search war­rant signed by a judge or if you give the of­fi­cer per­mis­sion to search. As with all pri­vacy pro­tec­tions we hold as cit­i­zens, we also hold the right to waive those pro­tec­tions. And some cit­i­zens may be waiv­ing those pro­tec­tions with­out even think­ing about it. Re­cently, Texas law was amended to al­low driv­ers to show proof of ve­hi­cle in­surance by pulling it up on their cell phones, rather than car­ry­ing around a hard copy. While con­ve­nient, I would urge any­one to think twice be­fore hand­ing their cell phone over to a police of­fi­cer.

I can al­ready hear some of you re­spond­ing to this is­sue now. If you’re a law-abid­ing cit­i­zen with noth­ing to hide, why not just al­low a police of­fi­cer to look at your phone if asked? While I com­pletely un­der­stand that mind­set, to me it’s al­ways about the broader pic­ture. We can­not al­low the gov­ern­ment, and law en­force­ment as an ex­ten­sion of gov­ern­ment, to over­step its bounds. We, as cit­i­zens, have cer­tain pri­vacy pro­tec­tions that have been put in place to pro­tect our in­di­vid­ual rights. I be­lieve it’s ex­tremely im­por­tant that the gov­ern­ment un­der­stand and re­spect our pri­vacy rights – re­gard­less of whether or not we have any­thing to hide. By waiv­ing any of these rights, even if seem­ingly harm­less at the mo­ment, we al­low the gov­ern­ment greater ac­cess which could lead to a grad­ual ero­sion of the rights we hold so dear.

Matt DeLuca

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