I am constantly amazed at what people will say or text on their Cell Phones. While reviewing Discovery furnished by the Government, I see highly incriminatory texting by my clients which make a Criminal Defense Lawyer’s work much more difficult. People seem to think they can text as candidly as they talk on their cell phones. Not true. Recently a ruling by a Federal Court of Appeals held that a Defendant’s cell phone may be searched without a warrant in order to identify its telephone number. This is important because once the telephone number is identified, the Government can subpoena its call history.
Not only that, once the cops get the cell phone, they are free to thumb through the address book.(See United States v. Rodriguez, 995 F.2nd 776) A phone is a computer; it is akin to the personal diary of an earlier time; and courts have long allowed the search of a diary. Interestingly enough, the personal diary was considered to be a container of information, and containers, defined by courts as “any object that can contain anything else, including data.” can be searched without a warrant.
But wait — personal data is on cell phones, and on computers. Does this mean that any cell phone can be searched as a container of information, whether personal or not? The courts have not gone that far. But, they are teetering dangerously close. This particular case limited its ruling to the finding that police can open the cell phone (diary) in order to obtain its number. But if, as earlier cases have ruled, the police can look through an old-fashioned address book, they will be allowed by the courts to do the same to a cell phone contact list. In my experience, cops are already doing this without a subpoena or a warrant.
As to limitations on what the cops can do for a warrantless search to be legal, there is a requirement of urgency — so what about a cellphone search? Because it is a computer, today’s modern cell phone, whether smart or not so smart, is subject to having its contents instantly erased by the owner; just like the earlier pagers, whose search was allowed by the courts for the same reason. Thus the urgency requirement is met, and cops don’t have to wait around for a warrant.
So read the tea leaves, folks. Watch what you text — it’s as likely to be read by somebody you don’t want as it is by its recipient.