When the Police Want Your Digital Devices: Search & Seizure of Phones and Laptops in Maryland

Federal, state, and local law enforcement may seek to examine your phone, laptop, desktop, and other digital devices if they have reason to believe you committed a criminal offense. If the police seek to examine your digital devices before, during, or after an arrest, you should immediately ask to speak to a criminal defense lawyer.

What types of crimes may the seizure of phones, laptops, and other digital devices show?

At Carey Law Office, we have 40 years of experience fighting for criminal defendants accused of white-collar crimes, online fraud, identity theft, phishing, cyberstalking, ransomware, and other types of cybercrimes. We can also provide experienced criminal defense when the government seeks to access your phone, computer, and other digital devices to show that a defendant committed embezzlement or other financial crimes.

Your smartphones and computing devices can show many different types of information that could be used against you, such as:

• Conversations – phone, email, social media, and other conversations.
• Financial records – including purchases, tax information, and other financial information.
• The people you work with and associate with.
• What you were doing and where you were throughout a day, week, month, and year.
• Your online photographs and videos.
• The sites that you search.
• Your social media sites, comments, and the people you communicate with on these sites.
• Evidence of other offenses than the ones that the government was initially investigating.

The prosecution may try to use information from your digital devices against you if they suspect you of criminal conduct in Maryland.

The Fourth Amendment to the US Constitution

The primary defense that our Bowie and Dunkirk criminal defense lawyers assert when police and prosecutors want to access your phone and computing devices is that the search of those devices would violate your US Constitutional rights. Specifically, the Fourth Amendment of the US Constitution, which provides as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Generally, police must obtain a judicial warrant supported by probable cause before searching digital devices, and the warrant must particularly describe the device and the categories of data to be searched.

Police may seize evidence without a warrant in certain circumstances, such as exigent circumstances, consent, or other recognized exceptions. However, they generally must obtain a warrant before searching the digital contents of a device.

We generally recommend that you not consent to the search of your digital devices without speaking with an experienced criminal defense lawyer.

How do our criminal defense lawyers contest the search and seizure of digital devices?

We often file a motion in federal or state court (depending on the location/jurisdiction of your case) to suppress the evidence the government has obtained from your digital devices. Our defense arguments may include the following:

• The police did not obtain a valid warrant.
• The warrant was not based on proper grounds.
• The police did not have reasonable grounds to search your devices without a warrant (if they failed to obtain a warrant).
• The chain of custody for the evidence, from seizure to potential use in court, was broken.
• The information is not relevant to the criminal charge.
• The evidence is invalid due to the “fruit of the poisonous tree doctrine” that provides that if the original grounds for seizing evidence were illegal, any evidence obtained through that illegal action must be excluded in your criminal case – subject to recognized exceptions such as independent source, inevitable discovery, or attenuation.
• The evidence from the digital devices is not admissible for reasons other than an illegal search and seizure.

Legal and practical issues affecting the seizure of digital devices

Issues that may affect the ability of the police to search and seize your digital information include:

• Whether you have a reasonable expectation of privacy of the information. Whether the information is password-protected may be one factor considered, but courts generally recognize a strong expectation of privacy in cell phone and computer data, regardless of password protection.
• If the person conducting the search is a private individual (not a member of law enforcement).
• Who gave consent and under what circumstances (for example, did a spouse or domestic partner give consent, or did a computer technician give consent?).
• In many cases, defendants may obtain access to data from seized devices through discovery, subject to court procedures and limitations.

At Carey Law Office, our criminal defense lawyer will seek to suppress any evidence from your phones, laptops, or other digital devices. We understand how and when to file motions to suppress illegally obtained evidence.

Without the ability to use the evidence from your digital devices, the government’s case may be significantly weakened, unless prosecutors have independent witness testimony, physical evidence, or other evidence.

Alternatively, the lack of evidence from these devices can improve your chances of a favorable outcome. We can also negotiate plea bargains when the grounds for seizing digital evidence and/or using it in court are weak.

Carey Law Office has offices in Bowie and Dunkirk. Call us or complete our contact form now to schedule a consultation. We also serve Calvert County.