Data Collected by “Smart” Devices Could Be Available to Police in Texas Criminal Investigations, Raising Fourth Amendment Questions

Digital communications technology continues to pose questions about the extent of the Fourth Amendment’s protections against warrantless searches and seizures. Both federal and Texas criminal laws tend to progress at a much slower rate than technology. The U.S. Supreme Court has found in favor of defendants challenging searches of some new technologies, but every time the court makes such a ruling, several new technologies appear and raise new questions. A recent article in the Washington Post addresses the increasing use of devices that connect to the internet and how this affects Fourth Amendment rights. Police have used data from various “smart” devices both to corroborate and to refute statements by witnesses and suspects. One law professor describes this practice as “sensorveillance.” Whether collection of such data without a warrant violates the Fourth Amendment is an unresolved question.

For much of this country’s history, courts analyzed Fourth Amendment claims by looking at the extent of physical trespass on private property. Ninety years ago, Justice Brandeis objected to this standard, noting that Fourth Amendment violations are possible even “without a physical seizure” of evidence. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). This remark specifically referred to a police officer who obtained information from papers belonging to a defendant without ever physically intruding on the defendant’s property. It could also apply to digital searches conducted today.

The “physical trespass” standard gave way to “reasonable expectation of privacy” with Katz v. United States, 389 U.S. 347 (1967), which involved warrantless eavesdropping on telephone calls. In the 50 years since Katz, the Supreme Court has ruled against warrantless searches involving various technologies. These include the use of thermal imaging to look inside a private residence, Kyllo v. United States, 533 U.S. 27 (2001); recording a car’s movements with a global positioning system (GPS) tracker, United States v. Jones, 565 U.S. 400 (2012); and searching a cellphone after an arrest, Riley v. California, 573 U.S. __ (2014).

The term “wearable technology” has recently entered our vocabulary, and it refers to digital devices that either record data about the wearer, such as a fitness tracker, or interact with the wearer’s surroundings, like a key fob that allows a car to start without turning an ignition. Another term, the “internet of things” (IoT), refers to the expanding range of devices that can connect directly to the internet, including home security systems and household appliances. Put together, these devices record and transmit a vast amount of data that indicate a person’s location and, in some cases, their activities.

Riley recognized a significant difference between searching someone’s personal effects, which is limited by how much a person can carry, and searching the contents of a cell phone, which could hold many gigabytes of data. Wearable tech and IoT devices might seem to fall under this principle, but the fact that they often transmit information to others could bring in the third-party doctrine. This holds that people do not have a reasonable expectation of privacy in information that they voluntarily provide to others. See United States v. Miller, 425 U.S. 435 (1976); Smith v. Maryland, 442 U.S. 735 (1979). These questions have yet to receive their day in court.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Board-certified criminal defense lawyer Michael J. Brown has advocated for people’s rights against charges in West Texas federal and state courts for more than 20 years. You can contact us online or at (432) 687-5157 today to schedule a confidential consultation with a member of our team.

More Blog Posts:

Appellate Court Rules on Question of Whether the Fourth Amendment Protects IP Addresses from Surveillance, Texas Criminal Lawyer Blog, November 2, 2017

Court Allows Search Warrant for Entire Email Account Under Stored Communications Act, Texas Criminal Lawyer Blog, June 8, 2017

Texas Law Requiring Warrant for Law Enforcement to Access Email May Have Federal Counterpart, Texas Criminal Lawyer Blog, May 25, 2017

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