A recent federal appeal’s court recently ruled that a search of the defendant’s cell phone, without a warrant, for the purpose of recovering its phone number, did not violate the defendant’s constitutional rights under the Fourth Amendment to the United States Constitution.
The case involved the arrest of a defendant on criminal drug charges in a federal prosecution for distribution of methamphetamine. The case was built on an undercover controlled purchase arranged through a co-defendant.
Law enforcement agents seized three cell phones from the truck that one of the defendants used to transport and supply the meth. After arresting one of the defendants, the government conducted a search without a warrant of the three cell phones. The search was conducted to determine the telephone number associated with each mobile phone.
As a result of finding the telephone numbers, the government subpoenaed cell phone records containing historical calling activity among the phones and used it as evidence supporting the conspiracy.
The court determined that it was impractical for law enforcement to “traipse” around with digital forensics hardware, and that remote wiping capabilities create an exigency that excludes cell phone searches from the protection under the Fourth Amendment prohibiting searches without a warrant. The court went on to find that searching for a subscriber’s cell phone number is ministerial and nonintrusive, and therefore, not rising to the level that requires a warrant.
Questions arise as a result of this decision. What if the recent calls directory on the cell phone contains the user’s telephone number on the screen of the telephone, but a text message from the suspect’s physician or attorney pops up when the search is being conducted? What if the number searched is virtual and used for incoming calls such as Google Voice requiring an online password for access? What about GPS data and the fact that the government is required to have a warrant before accessing it?
The law is changing and evolving along with today’s technology. There will be a point in the future when society will have to determine whether cell phones, per se, are extensions of the individual, and therefore deserving of the same constitutional protections that citizens enjoy in their use of traditional landlines.