Cell phones are ubiquitous in our society.  Most everyone has one and most everyone has very personal information contained on them.  The courts have been consistent in recognizing that people have a heightened expectation of privacy in the contents of their cell phones and that law enforcement (normally) needs to have a warrant to look into the contents of someone’s cell phone.  A few months ago, the Michigan Supreme Court issued an opinion reaffirming this idea.

In Riley v. California, 575 U.S. 373 (2014), the United States Supreme Court has held that a warrant is generally required before searching the information contained in a cell phone. This is to be contrasted with the seizure of the phone itself.  In Riley, the Court held that while police may seize a cell phone incident to arrest, a warrant is required to search the data stored within the cell phone.  Because “[m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet or a purse” because they are in fact, “minicomputers” with “immense storage capacity.”  Riley, 573 U.S. at 393.

The Michigan Supreme Court recently held that not only is a warrant required to search the contents of a cell phone but the police are only authorized to look for items on the phone that directly pertain to the subject of the investigation.  People v. Hughes, 506 Mich. 512, 958 N.W.2d 98 (2020). This is in keeping with the “particularity” requirement of the Fourth Amendment.    In other words, the police cannot go rummaging through your phone looking at anything on it to see what they can find that might get you in trouble any more than they can go rummaging through your house and seize anything they want: they have to be looking for specific items outlined in the search warrant.

In Hughes, the Michigan Supreme Court held that even though officers got a warrant to search the defendant’s phone for evidence of drug trafficking, they could not later go search the same phone under the same warrant for evidence of an armed robbery.  They had to get a new warrant that was specific to the new investigation.  When they did not get a new warrant, the search for evidence related to the armed robbery was deemed illegal.

Many criminal cases involve the search and seizure of a cell phone and the extraction of the contents of the cell phone by the police.  This can often lead to damaging information against the defendant.  It is critical in these cases that the criminal defense lawyers know the nuances of the Fourth Amendment as it relates to cell phone searches to best protect a defendant’s rights.  Call the criminal defense lawyers at Willey & Chamberlain.  We keep up with these developments for you.