Blog Post

Search Warrant for My Cellphone

With our cell phone data accessible to nearly everyone these days, I want to discuss your privacy rights if you ever face a criminal charge. Here is one of the biggest questions regarding personal privacy in criminal cases I’ve been asked recently:

Do the police need a search warrant for my cell phone? Is a warrant needed to access my phone’s location?

The answer to both questions is yes. If you have a reasonable expectation of privacy, the government must obtain a search warrant before conducting a search. The same goes for your cell phone location. If the government wants to see your cell phone records, or learn of your cell phone location, it must first apply for a warrant, and show that the info sought from your phone is crucial or material to its investigation. This is a requirement under the 4th Amendment.

This article breaks down your privacy rights regarding your phone and personal data when encountering law enforcement.

How can the government obtain my cell phone data?

While location data is not as good as GPS data, it generally is a good estimation of a person’s whereabouts at any given time. When presented with a search warrant, service providers will turn over that information to aid law enforcement with their investigation.

It is key to know how CSLI data can be collected: phones, tablets, laptops, or vehicle receivers can all transmit CLSI data that can be potentially collected. Besides giving location data, these devices can track the phone user’s location as they go about their day.

This data can be obtained through satellite navigation, Bluetooth technology, cell site location information, crowd-sourced Wi-Fi data, and Wi-Fi towers. As long as the phone’s location is turned on, the data can be collected, even when your phone is not being actively used.

How does the fourth amendment protect my cell phone data from the government?

In a nutshell, our 4th Amendment rights have gradually evolved to protect our cell phone data.

Our privacy rights stem from the 4th Amendment and Bill of Rights, written back in 1791. Back then, our founding fathers were concerned with preventing physical searches against the government, not cell phones. As the founders wrote, people have a right to be secure in their “persons, houses, papers, and effects.”

Today, government access to private information is a completely different situation, something our founding fathers could not have possibly accounted for.

Still, the 4th Amendment has evolved into the protection that encompasses cell phones. In 1967, the Supreme Court recognized that the 4th Amendment protects people, not physical places, and it applies where a person has a “reasonable expectation of privacy”. Katz v. U.S.

Nine years later, the Supreme Court limited that rule, holding that the government can get to a person’s information when he or she voluntarily gives the information up to a third party. U.S. v. Miller. Thus, bank records, dialed phone numbers, or even trash you place out in your front garbage can be voluntarily given up, meaning you have no privacy expectations. See Smith v. Maryland.

Basically, if you hand your information over voluntarily, you cannot expect privacy in it, and the government does not need a warrant to get it. This is called the Third Party Doctrine.

Carpenter vs US

This Third Party Doctrine was the heart of the Carpenter v. U.S. case. In Carpenter, two men were suspected of a series of robberies. To learn the location data of the men, the FBI applied for a search warrant to obtain the suspects’ cell phone location.

When applying for the warrant, the FBI stated that the cell phone location of both men was “relevant and material to an ongoing investigation”. According to the Trial Court, the FBI proved enough to obtain the search warrant for the phones.

The men appealed, arguing that the FBI needed to prove that their cell phone data was crucial to the investigation, not merely “relevant and material”. The case was denied at the 6th Circuit Court of Appeals, and an appeal to the Supreme Court was granted.

While the government argued that the suspects voluntarily handed over their cell phone data when they wandered around in public, the Supreme Court did not agree. Instead, the Supreme Court ruled that the FBI needed to show probable cause to obtain the warrant. In other words, the FBI needed to prove that both men committed the robberies, and that their cell phones were crucial to the investigation.

The Supreme Court’s decision was rooted in privacy or our physical whereabouts. According to the Court, cell phone locations obtained through service providers were “unique”, and was not information voluntarily given out by cell phone owners. Chief Justice Roberts, who wrote the opinion, expressed serious concern with the idea of citizens voluntarily sharing data every time they step out with the cell phones with the following:

“Critically, because location information is continually logged for all of the 400 million devices in the United States—not just those belonging to persons who might happen to come under investigation—this newfound tracking capacity runs against everyone. Unlike with the GPS device in Jones, police need not even know in advance whether they want to follow a particular individual, or when. Whoever the suspect turns out to be, he has effectively been tailed every moment of every day for five years, and the police may—in the Government’s view—call upon the results of that surveillance without regard to the constraints of the Fourth Amendment. Only the few without cell phones could escape this tireless and absolute surveillance.”

The Court was unwilling to conclude that everyday citizens “share” or “give away” their cell phone location data like a bank record or dialed phone numbers. Put another way, just because citizens go about their day with their cell phone active does not mean they voluntarily give that data away.

Thus, the Supreme Court denied the Government’s Third Party Doctrine argument, and held that our privacy rights regarding our cell phone devices require the government to establish probable cause when obtaining a warrant.

After Carpenter, search warrants must be detailed to obtain a defendant's location via cell phone data

Thanks to Carpenter, a person’s physical movements captured through their phones fall within a reasonable expectation of privacy under the 4th Amendment. The government needs a search warrant, supported by probable cause, in order to access your cell phone data and CSLI location.

With cell phones are becoming the key focus in many criminal investigations, you should be aware of your 4th Amendment rights, and how Carpenter affects you. At the end of the day, the police need a warrant for your cell phone. Regardless of what data they want, a warrant is needed according to Carpenter.

If you or your loved one face criminal charges that include the records of a cell phone, call us today. With over 34 years of experience, we know how to protect you in these trying times. Call 480-545-0700.