Many of my clients are surprised at the amount of information law enforcement has gathered about them. I wrote awhile back about how ubiquitous law enforcement surveillance is in our everyday lives. Many of my clients learn the hard way. Not only is it impossible to hide from the police these days unless you go live in the woods (well, not even that), but past crimes that many think they have escaped often come back to haunt the present because technology has conquered our “secret” world.
One of the “gifts” to law enforcement is the cell phone. Cell phones make it so much easier now for law enforcement to track down a suspect, discover a suspect’s plans or activity (although this usually will require a search warrant or consent in California), and learn much more about a suspect just by reviewing cellphone or cell tower data. We want to believe law enforcement conducts their cell phone surveillance lawfully but in this age of whistle blowers, we know that is not always the case.
One of the supposed advantages of iPhones is that the data on the phone is encrypted. Even law enforcement cannot access information from an iPhone…or so they say. The reader may recall the outrage over the reported inability of the FBI to access the iPhone data of the San Bernardino terrorist. The FBI couldn’t crack the iPhone code and asked (well, ordered) Apple to create software that would allow the FBI access. Apple refused. Before the FBI went to court to compel Apple to crack the code, the FBI paid a third-party “hacker” to break into the phone’s data.
Turns out that even though Apple claims their phones are safe from data breaches, Cellebrite, an Israeli company that is a major contractor with the U.S. government, says any iPhone can be hacked, even the supposedly super secure iPhone X and iPhone 8. Cellebrite provides services to law enforcement, including the FBI and immigration authorities.
So, is it legal for law enforcement to hack a suspect’s cellphone? This is a Fourth Amendment issue; under this amendment to the U.S. Constitution we are given the right to be secure from unreasonable searches. Does that include the data on our cell phones? If you have been arrested for a crime, can the police require you to allow them access to everything on your cellphone? This is an evolving area of law and the courts haven’t quite caught up.
In California, your cell phone data, even when you are suspected of a crime, is protected and the police cannot review the contents of your cell phone without your permission or a warrant. However, police will often claim an exception to this rule, such as exigent (emergency) circumstances or other established exceptions. In some cases, the police may surreptitiously review your cell phone data without your knowledge. In any case, if the police search your cell phone without a warrant or without your consent, there is often grounds for a motion to suppress whatever evidence they find on the phone. If this motion is granted, it often results in dismissal of the case when the evidence on the phone (or any evidence flowing from that information) is crucial to the prosecution.
It can be difficult to prove that the police unlawfully searched your cell phone. William Weinberg is an experienced criminal defense attorney in Orange County who has successfully argued motions to suppress unlawfully gathered evidence in many cases. You may contact him for a free consultation regarding your criminal matter by phoning him at 949-474-8008 or by emailing him at email@example.com.