Is Your Cell Phone Data Police Candy?
As a Charleston criminal defense lawyer, I believe it is essential to monitor relevant nationwide trends.
Sometimes, citizens are not aware of creative activities that police in other areas of the country are pursuing that might not be exactly constitutional. Well-intended, but constitutionally questionable.
Click here to read what Michigan Police officers were doing with cell phones of citizens they stopped. You might be surprised.
In the old days, if a person arrested happened to have an address book in his possession, creative police might very well sneak a xerox copy of every page in the book.
That was “old tech” but still creative.
Now, a new question appears. If a person is arrested for any offense, do the police have the right to seize their cell phone, possibly bust the password and then review and clone or copy all the data therein? What if you were only stopped for speeding? What if your children’s social security numbers were stored? How about your banking access data? Your family photos?
This is yet another example of the failure of the law to keep pace with the development of computerized electronic devices-an issue I have been following for years.
Analysis of this issue reminds me of what a city prosecutor once told me about his approach to what rules allow and prohibit what lawyers can do in the course of a trial.
He said, “If isn’t illegal, it’s legal.”
That’s the problem. This perspective completely ignores fundamental rights each and every one of us have in this great country, and forget about until we find ourselves or a family member needing them. Police may feel that if there isn’t a law against doing so, it is legal. But is it constitutional? A fundamental constitutional right is the right to be free from unreasonable searches as guaranteed by the 4th amendment.
But see below. Laws regulating this activity may be forthcoming in South Carolina.
Does a citizen have a reasonable expectation of privacy in a locked or password-protected cell phone?
Is the search of a cell phone incident to arrest of a person a constitutionally valid exception to the warrant requirement of the 4th amendment? If so, based on what?
These issues are ripe for legal resolution. Based on legislative action reviewed below, we may not have to wait for our appellate courts to hear and decide this-at least for now.
New Legislation in SC on Rights of Citizens
Just when I thought no one else cared, I am happy to report that we do have members of the General Assembly who do care. While police cell phone searching is happening in other parts of the country, it must be happening here for legislators to have introduce bills addressing it. Hats off to them.
The Senate
S. 107 A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 17-13-180 TO DEFINE THE TERM “CELLULAR OR OTHER PORTABLE ELECTRONIC WIRELESS COMMUNICATIONS DEVICE” AND TO PROHIBIT THE SEARCH OF CELLULAR OR OTHER PORTABLE ELECTRONIC WIRELESS COMMUNICATIONS DEVICES INCIDENT TO A LAWFUL CUSTODIAL ARREST WITHOUT A SEARCH WARRANT OR WITHOUT THE EXPRESS WRITTEN PERMISSION OF THE PERSON OR OTHER LAWFUL OWNER OF THE DEVICE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 13, Title 17 of the 1976 Code is amended by adding:
“Section 17-13-180. (A) As used in this section, ‘cellular or other portable electronic wireless communications device’ means a moveable or transportable device that is capable of creating, receiving, accessing, or storing electronic data or communications and includes, but is not limited to, cellular telephones or ‘smart phones’.
(B) Notwithstanding another provision of law, information contained or stored in a cellular or other portable electronic wireless communications device is not subject to a search by a law enforcement officer incident to a lawful custodial arrest except pursuant to the provisions of Section 17-13-140 providing for the issuance, execution, and return of a search warrant or pursuant to the express written consent of the person subject to the lawful custodial arrest or other lawful owner of the device.”
SECTION 2. The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws.
SECTION 3. This act takes effect upon approval by the Governor.
The House Bill on this issue appears below:
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 17-13-180 SO AS TO PROHIBIT A LAW ENFORCEMENT OFFICER FROM CONFISCATING OR SEIZING A CELL PHONE, VIDEO RECORDER, OR OTHER ELECTRONIC RECORDING DEVICE AT THE SCENE OF A LAW ENFORCEMENT INVESTIGATION OR LAWFUL ARREST UNLESS ITS USE SUBSTANTIALLY IMPEDES OR INTERFERES WITH THE INVESTIGATION OR ARREST, TO PROVIDE A PENALTY FOR UNLAWFUL SEIZURE OF A DEVICE, AND TO PROVIDE FOR THE RETURN OF THE DEVICE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 13, Title 17 of the 1976 Code is amended by adding:
“Section 17-13-180. (A) It is unlawful for a law enforcement officer to confiscate or seize a cell phone, video recorder, or other electronic recording device at the scene of a law enforcement investigation or lawful arrest unless the use of the device substantially impedes or interferes with the law enforcement investigation or lawful arrest. A law enforcement officer who violates the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars or imprisoned for not more than thirty days.
(B) If a device, as described in subsection (A), is lawfully seized, the device must be returned to the owner upon payment by the owner of a fee of not more than twenty-five dollars within thirty days of the confiscation or seizure of the device. The owner of the device may not be charged a fee for its return if the law enforcement officer confiscated or seized the device in violation of the provisions of subsection (A).”
SECTION 2. This act takes effect upon approval by the Governor.
Stay tuned to your government. Privacy isn’t important until you need it, as we just learned in the Palmetto State hacking scandal.
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This post is NOT intended to offer legal advice but is presented to enhance awareness of legal issues. A lawyer should always be consulted for legal advice.