What You Should Know About Your Cell Phone Privacy in the Digital Age

This is a guest post by attorney Dave Owens.

cell phone, search and seizure, fourth amendment, u.s. constitution, arrest warrant

Zack Morris from Saved by the Bell

We’ve come a long way since the Zack Morris “Saved by the Bell” cell phone. In fact, with the invention of smart phones, cell phones are now essentially a personal computer.

A person’s cell phone often contains personal information (contacts, phone numbers, web sites visited, email correspondence).

Also, with many businesses now equipping their employees with Blackberries, a phone may contain important and confidential work information.

And of course, with photo and video recording capabilities, some people have been known to use phones for a little “private purposes” now and then. Ask Scarlett Johansson how embarrassing it can be if these photos are revealed….

So, how would you feel if a police officer started browsing through this type of information?

In Oakland, there have been many recent arrests related to the Occupy Wall Street Movement. What many of the protesters might not know is that if you have a cell phone in your possession when arrested, the phone may be searched right then and there.

Exceptions to the Fourth Amendment

The Fourth Amendment of the U.S. Constitution states that:

 The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Generally, this means that the government must first obtain a warrant before it can conduct a search. However, courts have found that there are exceptions — one being for searches incident to arrest.

Search Incident to Arrest

Courts have held that a police officer may search material in “immediate control” of the arrestee for reasons such as officer safety, inventory of the items, and to prevent the destruction of evidence.

Generally this has applied to items such as containers, briefcases, purses, bags, and wallets.

Although the Supreme Court has not ruled that cell phones are applicable to the search incident to arrest exception, many courts (including those in California) have held that police officers may search an individual’s cell phone incident to arrest.

Therefore, information on your phone could be used against you in a criminal proceeding if there was a prior lawful arrest.

What You Don’t Know About Your Cell Phone Can Hurt You

Here are a few things to know and some general advice regarding your cell phone:

1.  You Can Say No To The Police Officer

Don’t give your cell phone to a police officer unless you are under arrest. Otherwise a court may find that you voluntarily waived your rights by allowing the police officer to search the phone.

How do you know that you’re under arrest? The Supreme Court has held that an arrest occurs when a reasonable person would not feel he or she was free to leave. That means you don’t necessarily have to be in handcuffs to be considered under arrest.

2.   Use A Password to Access Your Phone

Require a password for entry into your phone. This is a generally a good idea whether or not your arrested. If the officer cannot search the phone incident to arrest, it is likely that a warrant would be required before he or she could search the phone.

However, if your phone has been jail broken (http://cellphones.about.com/od/glossary/f/jailbreak_faq.htm), a knowledgeable police officer may be able to gain access to your phone.

3.   Back Up Your Phone

Back up your information. I can’t recite a single one of my friend’s telephone numbers because everything is nicely stored on my cell phone. You may have nothing incriminating on your phone, but don’t want the information to somehow get erased.

4.   Leave Your Phone At Home

I realize this is easier said than done. I can’t go to the grocery store without bringing my phone because God forbid I am not able to check NFL scores or whether I have a friend request on Facebook while shopping for mangos.

But, for instance, if you’re going to a protest or something of that nature and believe that you may potentially be arrested, it may just be worthwhile to leave the phone at home.

5.   Realize This Is the 21st Century 

Although technology is omnipresent in our lives, many of us still operate under the same rules we did before the Digital Age.

Like it or not, technology in many cases has meant less privacy. So, you must take preventive measures when necessary and use your better judgment.

Dave Owens is an attorney in the San Francisco Bay Area. He can be reached at dave.owens.legal@gmail.com.

Photo credit: Zomm News