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Cell phones have almost become an essential extension of modern life, and many people could not do their job or maintain social contacts without this device. Cell phones also store and track personal and sensitive information related to a person’s whereabouts, internet activity and conversations with other people and organizations. In the context of a criminal investigation, this information is frequently sought and obtained by police to aid with securing a conviction, but some gaps in the law permit easy access to this data. While the Fourth Amendment to the U.S. Constitution protects citizens from unreasonable searches and seizures of persons and property without a warrant, cell phone location data exists outside this requirement in many places. Thus far, courts addressing this issue have universally held that police are freely permitted to access this information without a warrant because any privacy interest a person may have in this information is lost by sharing it with a third party, the cell phone provider. The U.S. Supreme Court is currently considering the application of the Fourth Amendment to police requests for cell phone location data, and the Court’s decision will be the benchmark that controls how digital data is likely to be treated going forward. A discussion of how police use cell phone location data in criminal cases, as well as what police must show to have a valid warrant issued, will follow below.

Police Use of Cell Phone Location Data

In order for the state to convict a person of a crime, the prosecution must produce evidence of a defendant’s guilt beyond a reasonable doubt. One central element in many prosecutions is the location of the defendant while the criminal activity took place, and specifically, whether the defendant was in the vicinity of the alleged crime. Without evidence to place the defendant at the scene, jurors are unlikely to find enough evidence of guilt. Cell phone location data collected and retained by cell phone providers, while lacking in pinpoint accuracy, can indicate a person’s general location every time he/she makes a phone call, sends a text or accesses the internet. This is highly private digital information that, for the first time ever, allows law enforcement to track a person’s movements without direct surveillance (activity for which police must obtain a warrant). Such information could conceivably infer false connection to a crime, and thus, law enforcement’s access to and use of this data is a critical issue. California does have a law requiring a warrant to gain access to cell phone provider records, but federal authorities have no such restriction, and currently, can get this information without showing the same level of cause.

Getting a Valid Warrant

A search warrant allows police to search any specified area for evidence of criminal activity, including a person’s home, car, cell phone or workplace. If police find evidence supporting the alleged criminal activity, they are also allowed to seize it. This type of search and seizure is only permitted under a valid warrant, unless an exception to this rule applies, such as:

  • the owner’s consent;
  • the search is connected to a lawful arrest; or
  • the evidence was in plain view.

To convince a judge that a warrant is justified, there must be evidence a crime was committed, and the proposed area to search is likely to contain evidence of said crime. Further, the judge must find there is “probable cause” or a reasonable belief that the person named, or items described in the warrant will be found at the designated location. Typically, the judge will take oral or written affidavits from law enforcement, the prosecutor or a witness about the facts of the case to see if probable cause exists. However, if a warrant is issued improperly, this fact would give the defense cause to request dismissal of criminal charges or the exclusion of seized evidence.

Hire a Criminal Defense Attorney

Protecting your rights in a criminal case is essential to achieving the best possible outcome. Los Angeles’ Manshoory Law Group, APC have the experience and resources to thoroughly investigate the state’s charges, and will give you the best chance at minimizing or eliminating serious consequences. Attorneys are available 24/7 to take your call. Contact us for a free consultation.

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