In what’s being called a precedent-setting decision, Maryland’s highest court recently ruled that search warrants for cellphones and smartphones must be specific to the crime-related information being sought. What this means for individuals accused of crimes is that police and detectives can no longer search through the contents of an entire device, which often contains highly personal information – only content specifically listed in a search warrant that is relevant to the criminal activity at hand.
This ruling is in response to an appeal of the United States Supreme Court’s 2014 decision on Riley v. California, which established that law enforcement must have a court order (search warrant) in order to seize and search a person’s cellphone. However, this decision didn’t detail exactly how specific this search warrant needed to be – leaving court orders open to blanket warrants and potential invasions of privacy.
Judge Jonathan Biran of the 5th Appellate Judicial Circuit wrote this invasion of privacy is a violation of citizens’ Fourth Amendment rights and the decision is meant to correct that. He also noted:
The particularity requirement is arguably of even greater importance in the context of computers and smartphones than in the physical world (of houses and containers), given the ability of smartphones to store millions of pages of text, thousands of pictures or hundreds of videos, and of computers to store much more still.
In submitting and ruling upon every application for a cellphone search warrant, the affiant (requesting the warrant) and the issuing judge must think about how to effectively limit the discretion of the searching officers so as not to intrude on the phone owner’s privacy interests any more than reasonably necessary to locate the evidence for which there is probable cause to search.
Currently, it appears many state and local authorities are unsure how to approach this ruling.
Baltimore police halt cellphone searches
The Baltimore Sun reports as of September 2, the Baltimore Police have stopped pulling information from smartphones while they develop parameters on how to handle search warrants per the Court of Appeals ruling. Per the Sun:
Although the opinion is unambiguous about its intent, the court opted for general guidelines for law enforcement and trial judges rather than a step-by-step process for how agencies should come into compliance. It provided examples for protocols police departments could implement to adhere to the new law, carved out exceptions and left judges discretion to apply it on a warrant-by-warrant basis.
It’s important to note that not all state authorities have halted cellphone searches – for example, the Sun reports Anne Arundel County Police continue phone searches in conjunction with the state attorney to “ensure everything is in compliance.”
If authorities ask to search your cellphone
If police ask to search your cellphone or smartphone, as you can see, you have certain rights. Our Bowie and Crofton criminal defense attorney is always here for you, but here are some general tips to remember. Authorities can only search your cellphone under limited circumstances:
- When you give your consent. Police can search ANYTHING if you give consent. This means your person, vehicle, home, computer, and your smartphone. We advise against this, and please remember that you are never obligated to provide the police your password while being detained or questioned.
- With a search warrant. Authorities are permitted to search your property, including your phone, with a proper and specific warrant. This recent court ruling ensures police cannot overstep their bounds when searching your mobile device.
- If evidence is at risk of destruction. Police may seize and search a phone if they reasonably believe it is at imminent risk of being destroyed, deleted, or erased.
- If you have been arrested. After an arrest, authorities can seize your property. However, they may not search your cellphone without a proper warrant.
Carey Law Office can help you assert your rights. For the best outcome, we urge you to contact us as soon as possible so our experienced criminal defense lawyer can get started on your case. To schedule a consultation, call 301-464-2500 or fill out our contact form today. We have offices in Bowie, Crofton, and Owings, and serve clients throughout Maryland.
My name is Joe Carey, and I am the founder and principal attorney of the Carey Law Office. I have lived in Maryland my entire life. I grew up in a small town in Prince George’s County and, with the help of my partner in life, Nancy, I raised my family here: three exceptional children (a son and two daughters), and two goofy, spoiled black Labrador Retrievers. Learn More