Smartphone technology has advanced at breakneck speed. The new iPhone X makes the original iPhone, which debuted in 2007, look like two tin cans attached to a string. For example, cloud storage allows for almost unlimited data storage. Some of that data is not meant for public consumption, to say the least. Other data, such as certain pornographic images or illicit conversations, could get you in trouble with the law.

In recent years, the Supreme Court has twice addressed cellphone searches and the right to privacy. In both instances, the Justices held that such searches, absent a warrant or a search warrant exception, run afoul of the Fourth Amendment.

The Cases at Issue

In 2014, the Supremes handed down its decision in Riley v. California. Officers detained Riley, who was acting rather suspiciously. They arrested him for a weapons violation. During a pat-down search for weapons, they found his smartphone. When they scrolled through his phone, they found pictures and messages which, they claimed, implicated Riley in gang activity. Prosecutors quickly charged Riley with a prior gang-related shooting and added a gang enhancement to the weapons case.

The Justices ruled that the smartphone search violated the Fourth Amendment. Phone owners have a reasonable expectation of privacy for anything past the home screen. As such, searching a phone is like searching a house. Without a warrant, or unless a search warrant exception applies, the search is invalid. As a result, any seized evidence is inadmissible.

Four years later, the Justices narrowly expanded the Riley holding in 2018’s Carpenter v. United States. Each time people use their phones, the nearest cell tower records cell site location information (CLSI). In Carpenter, the FBI used this data to track the defendant’s movements. According to court documents, the FBI harvested nearly 13,000 data points covering six months of use.

Once again, the Justices ruled that the CLSI collection was a Fourth Amendment search. The ruling significantly expanded Riley. Carpenter did not own the CLSI data. And, if he was like us, he probably did not even know it existed until the FBI used it to convict him of bank robbery.

So, the law is still developing. But based on these two decisions, St. Paul sex crime attorneys should be able to exclude any illegal pornography, like child pornography, that officers find on the defendant’s smartphone.

Search Warrant Requirements and Exceptions

The Fourth Amendment’s prohibition of unreasonable searches and seizures does not apply if officers had a valid warrant, or a search warrant exception applied.

A warrant must be based on probable cause. The law does not define this standard. But it is somewhere between reasonable suspicion, which is basically an evidence-based hunch, and beyond a reasonable doubt, which is near absolute certainty.

Additionally, the warrant must be specific. Authorization to scroll through a phone is probably too broad. Instead, the warrant should only give officers the right to look for evidence of certain crimes, such as possession of child pornography.

On a related note, if officers ask you to unlock your phone with your fingerprint or give them your password, you have the right to refuse these requests under the Fifth Amendment. This provision gives defendants the right to remain silent. If you assert this right, officers will almost certainly arrest you, but that was probably going to happen anyway.

Generally, search warrant exceptions apply if the defendant either did not have a right to privacy or expressly waived that right. Some common exceptions include:

• Consent: If you unlock your phone and hand it to officers, they may look through it as much as they want. Once given, consent is absolute. You cannot limit it or withdraw it.
• Probation or Parole: Minnesota law is fuzzy on this point. But in 2006, a state appeals court held that ” a
  warrantless search under a valid probation agreement does not violate the constitutional prohibitions of
  the Fourth Amendment.” The Minnesota Supreme Court basically affirmed this holding a year later. In other words, according to these cases, when the court places people on probation, they automatically give consent to warrantless searches.
• Plain View: A smartphone’s home screen is in plain view, because everyone can see it. Anything past that is not in plain view. It does not matter if the phone was locked or unlocked.

St. Paul Sex Crime Attorneys, Image Possession, and Knowledge

If Ramsey County prosecutors get smartphone downloads past the warrant requirement, all is not lost. St. Paul sex crime attorneys can argue the defendant did not “possess” the images, because s/he lacked knowledge. You cannot possess a gun in a glove compartment unless you know the gun is there. The same principle applies with regard to electronic images.

Many times, people receive images but do not know what they are. Perhaps they go to an email spam filter, or the thumbnail is so small that the defendant cannot tell the image is pornographic.

Other times, people receive unwanted images. Such seizures are in a grey area. If you refuse a gift, did you ever really get it in the first place? The IRS would say that you did not receive it and therefore you need not pay taxes on it. But an electronic image is uncertain. Nevertheless, this defense could be a valid one. A St. Paul sex crime attorney just has to create reasonable doubt.

Connect with a Dedicated Lawyer

The Constitution keeps smartphone contents private, even if officers want to look. For a free consultation with an experienced St. Paul sex crimes attorney, contact Capitol City Law Group, LLC. Go online now, call us at 651-705-8580, or stop by 287 6th St E, Suite 20, St Paul, MN 55101.