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When Can Cellphone Evidence Be Used In A Criminal Prosecution?

Our mobile devices have become increasingly sophisticated to the point that they often replace laptop or tablet computers. A Smartphone can be used for texting, GPS, surfing the internet and taking photographs through an Instagram app. Law enforcement agencies have long recognized that these mobile computers are a treasure of trove data.

Technology has advanced to the point that police can now track mobile phones. A FBI agent admitted using a cell site emulator also referred to as a “stingray” in a 2009 Utah case. Recently, police in a Florida case justified using the device without telling a judge because of a non-disclosure agreement with the manufacture. The information obtained with a “stingray” may not be admissible in court and may not provide probable cause for a warrant, which could aid a criminal defense.

Legislation addressing the surveillance issue is working its way through the Utah legislature. A bill that would require “a government entity obtain a search warrant before obtaining the location of an electronic device” passed in the Utah House of Representatives. It is now pending in the Senate.

Cellphone searches often turn up incriminating evidence

What about a search of a cellphone? The Fourth Amendment of the U.S. Constitution guarantees us the right to be free from unreasonable searches and seizures. A search warrant is usually required prior to a search; however, a search incident to arrest is an exception. This is usually when a cellphone search occurs.

Two cases are on appeal at the U.S. Supreme Court that will address whether evidence obtained from warrantless phone searches can be used in court.

The first case arose from the search of a cellphone following the stop of a vehicle for expired tags. Prosecutors linked David Riley to a shooting through a photograph of him in front of a car similar to the one at a scene of a shooting. The photo was shown to jurors at trial. Riley was convicted of three charges related to an incident where shots were fired at an occupied vehicle. His conviction was upheld by a California appeals court.

The other case was appealed by the federal government. A Massachusetts appeals court ruled that police could not search the phone of Brima Wurie without a warrant following an arrest for suspected drug dealing. The appellate court overturned two of the three convictions against Wurie.

One difference between the cases is that Wurie did not have a smartphone like Riley. Prosecutors argue that searching a cellular phone is not any different from searching other things found on a person at the time of arrest.

If you have been accused of a crime, speak with a criminal defense attorney as soon as possible. If incriminating evidence was contained on your cellphone, a lawyer can advise how it might affect your case.

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