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Cell Phone Evidence – The Basics

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With smart phones becoming such a critical part of our lives, cell phone evidence is becoming more common. Crucial evidence to a case is often found within the data of the cell phone. The State can obtain this evidence, but it is not easy and can lead to important litigation for a successful defense.

Once an officer seizes your phone – whether pursuant to a search incident to arrest or a search warrant – accessing the contents of your cell phone – i.e. its data –  is still necessary and raises new issues based upon whether and how your phone is protected by a passcode or touch ID sensor.

The State must obtain a warrant – or find an exception to the warrant requirement – in order to search the contents of your phone. And if your phone is protected by a passcode, the Fifth Amendment protects you from being forced to provide the passcode. Doing so would require you to provide evidence against yourself, which is exactly what the Fifth Amendment protects. But, if your phone is protected by your fingerprint, the police may compel you to provide your fingerprint after it obtains a search warrant. The reason for this distinction is that fingerprints are considered material evidence, much like blood or handwriting samples, whereas the passcode is a thought and idea of the person that is protected by the Fifth Amendment.
Even still, if the State legally accesses your phone, there is only so much information that can be immediately gleaned. Sometimes, it is necessary for the State to also obtain data usage records from the cell phone carrier. This can be a time-consuming and difficult process that some agencies may not pursue, particularly for the less serious violations. Plus, the provider may not even have the information the State is seeking. For felony offenses, surely the State will go to this extreme measure if it believes valuable evidence can be obtained.
The takeaway – it is best, legally speaking, to have a passcode as a security measure for your phone. This cannot be compelled from you and will offer the most protection under the guarantees of our Constitution. And if cell phone evidence is proving to be critical to the State’s case, make sure you get a criminal defense team like North Star Criminal Defense that knows the limitations in this developing area of law.


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