Privacy and Warrant Requirements in the Digital Age

A recent article described the challenges courts are facing when interpreting whether the constitutional protections of privacy extend to certain technologies. There are several cases in which the U.S. Supreme Court may decide to review that involve whether a cell phone may be searched without a warrant and whether individuals can be compelled to provide passwords to law enforcement. 

Can the government track your cell phone?

Yes, but in Pennsylvania they will need a warrant or an exception to the warrant requirement.  Pennsylvania Courts have been grappling with the privacy protections afforded by the State and Federal Constitutions as applied to modern technology.  Recently, the Superior Court decided an issue of first impression for Pennsylvania- whether the real time interception of a cell phone signal for tracking purposes violates an individual’s right to privacy.  In Commonwealth v. Rushing (71 A.3d 939), the Superior Court held that an individual does have a reasonable expectation of privacy in one’s real time cell phone signals, and that generally police are required to have a warrant.   However, in this case, because exigent circumstances existed, and the police had probable cause, they were permitted access to the defendant’s cell phone signals in real time to track him to his location without a warrant.

Can the government search the contents of your cell phone?

Maybe.  As the law currently stands, police may conduct a search incident to arrest, and therefore police may search anything on the suspect’s person.  The rationale is to protect officer safety and prohibit a suspect from destroying evidence of his/her crime.  However, courts have been struggling with applying these decades-old rulings to modern cases involving cell phones. Some courts hold that an individual does not have a reasonable expectation of privacy in his/her cell phone, while others hold that a reasonable expectation of privacy exists in a cell phone, given the level of personal information stored on phones.

A federal court of appeals for the First Circuit recently held that police are prohibited from searching the contents of a cell phone without a warrant.  The court reasoned that, unlike many other items in which exigent circumstances may justify a search without a warrant, a cell phone which has been seized does not hold any evidence which could be destroyed prior to police obtaining a warrant. This is consistent with only a handful of states (Ohio and Florida) which prohibit warrantless searches of cell phones.  The Seventh Circuit, along with many state courts, has ruled that police may search a cell phone without a warrant, incident to arrest.  Pennsylvania, along with many other states, has not clearly ruled on this issue.