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Did You Know: Your Cell Phone Can Be Searched In Its Entirety If You Are Arrested

If you didn’t have a password on your cell phone before, this mock trial may change your mind.


OPENING STATEMENT:

I ran into this story from First Coast News in Jacksonville regarding the police’s ability to search your cell phone if you are arrested. The story references the case of State v. Ricardo Glasco out of the Fifth District Court of Appeals. The Fifth District Court of Appeals is based out of Daytona Beach. 

Ricardo Glasco was arrested for possession of drugs. While he was in handcuffs, the police searched him and found his cell phone. When Glasco was booked at the jail, the police searched his cell phone and found text messages that revealed that Glasco intended to sell the drugs. 

The question before the patch.com jury is whether police should be able to search your cell phone if you are lawfully arrested and use the information in your cell phone against you? The Glasco Court says yes. What is your position?

There are several cases cited in the court’s opinion and this will not be the last we hear of this issue. With your help and comments and outreach, perhaps we can get a definitive answer.

Before we call our first witness, let me be clear on my short-coming: I am not a criminal law attorney. I do not have the depth of knowledge a criminal law attorney could add to this article. However, because cell phones are such a huge part of our lives in this day and age, and, let’s be honest, we all know at least one person that has been arrested, this makes for a great story for you to voice your legal opinion in my Legal Corner. 

One other point that I should bring up before we get to our witnesses: It is unclear to me whether the police can force you to give them your password to your cell phone upon arrest even if they have your cell phone. 

As with all trials, I ask that you read about each witness before beginning your deliberations.

HYPOTHETICAL WITNESS ONE: THE DRUG DEALER

Perhaps our first witness is not hypothetical at all: Let us call him Ricardo Glasco. Glasco was arrested for drug possession and he moved to suppress evidence that escalated his drug possession charge to include intent to distribute. 

According to the Court, because Glasco had his cell phone in his pocket, it was subject to a search. The Court essentially said that a cell phone is like a container. 

This is an interesting analogy and I don’t necessarily disagree with the analogy. A cell phone is one of the most compact containers perhaps of all time. It contains phone logs, emails, text-messages, Internet searches, pictures, downloads, and other matters contained within the physical phone. I can understand how this is similar to a bottle containing beer, a bag containing marijuana, or a bottle containing illegal prescription drugs.

HYPOTHETICAL WITNESS TWO: THE LAWYER

Our second witness is a lawyer with the most sophisticated smart-phone known to society that can Skype, email, text message, and run his or her entire business on the fly without the need for an office or server. We will call this witness Mr. Miller.  Mr. Miller has been arrested at his house for reasons related to attorney misconduct.  However, the cell phone contains very sensitive attorney-client privileged information that could destroy some of Mr. Miller’s clients or subject them to criminal liability. 

What do we do then? Mr. Miller was arrested for attorney misconduct and perhaps some of the information on the cell phone could help to further that investigation. Mr. Miller had his cell phone on him and therefore would be subject to search.  However, all the information is protected by attorney-client privilege that the clients refuse to release.

The police gather the information including the privileged documents (perhaps thousands), the privileged emails, and the videos. Perhaps some of the emails from Mr. Miller’s clients lead to the arrest of Mr. Miller’s clients. Did the police have the right to search the cell phone under these circumstances and breach the attorney-client privilege? Perhaps a situation like this is why our current cell phones are not simply containers. Even if the cell phone contains information that can further the case against the attorney, it invades the secrecy of the people that are communicating with attorney at no fault to the other people.

HYPOTHETICAL WITNESS THREE: THE ATHLETE

Mr. QB is driving his car at 4 a.m. and has a blinker that is not working. The police pull him over. Mr. QB found out eight hours ago that his license was suspended, and he is simply driving home late at night with the intention of paying his tickets tomorrow so he can get back to training camp. He is not intoxicated, has never been arrested, and is otherwise a known as a great community leader. 

When the police pull Mr. QB over, he admits that he knew his license was suspended, and the police feel obligated to arrest him. They search his cell phone that is in his pocket after he is booked.  In his cell phone, they find an email from his trainer that the next shipment of illegal Performance Enhanching Drugs (PHDs) are going to arrive at his house the following day at noon.  The police intercept the drugs. Congress had already held hearings and Mr. QB denied any use of PHDs. Now Mr. QB is facing perjury charges. 

The previous two witnesses had some information in the cell phone related to the reason the suspect was brought into custody. In this scenario, we are dealing with something completely unrelated to the original reason Mr. QB was placed in custody. 

CLOSING ARGUMENT

Because I am not a criminal attorney, I cannot give a solidified answer to any hypothetical presented here. It appears to me, however, that if you password-protect your phone, the police may not be able to force you to disclose your password immediately.

I will suggest that we need to get some definitive rules on when, why, where, and to what extent our smart phones can be searched regardless of whether they are in our pocket or on our desk.

If I were arguing the case to a jury, I would suggest that a smart phone is not a container. It does not contain a pill, a sandwich, or a drug. It is an extension of our home and our family.  Cell phones contain communications with our spouses, attorneys, accountants, and children. It is private. 

Members of the Patch.com Jury, I leave the verdict to you. 

Trivia question:  What is the website for the fundraiser that I appeared on the Legally Steal Show to promote? The host of the Legally Steal Show is S.E. Day and he blogs for the Brandon.Patch.com site.  You can listen to the program by visiting www.legallysteal.com and finding the June 23, 2012, broadcast or click here to download it.

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