Drivers in Michigan might be surprised to learn that police may be searching the cell phones of drivers throughout Michigan. The State Police purchased and are using portable devices to download information from motorists' cellular phones, including outgoing calls, photographs, contact lists, stored text messages, deleted texts and recorded audio and video-all without phone owners' knowledge.
Upon learning of the devices, the American Civil Liberties Union of Michigan submitted dozens of Freedom of Information Act requests to the MSP, starting in 2008. The ACLU of Michigan wants to understand, and let the people of Michigan understand, exactly how MSP is using the devices. What privacy rights each person has in his or her individual cell phone is not yet settled, but the ACLU wants to ensure that the actions of the MSP do not step on Michigan motorists' Fourth Amendment rights against unreasonable search and seizure.
MSP has yet to comply with the information requests, claiming that it will cost taxpayers $544,680 to provide documents showing how MSP has used the devices. Meanwhile, whether your phone is being subjected to search without a warrant remains uncertain.
Cellular Phones and the Fourth Amendment
Courts have begun to address the issue of how far the Fourth Amendment goes in protecting cellular phone users. As cellular or mobile phones become more and more sophisticated, the potential information that police can extract from them also grows. Mobile phones are becoming better at recording where they-and by extension, their users-have been and at what time. Essentially, cellular phones have turned into tracking devices. Additionally, the storage space available on smartphones means that more people are storing more information on phones: photographs, videos, calendars, addresses and e-mails.
In 2005, several courts held that the U.S. Department of Justice cannot track a cellular phone's location in real time without a warrant. In 2008, a federal court in Pennsylvania held that police need a search warrant to access records that a mobile phone service provider has stored about a phone's location.
Courts are divided on whether police need a warrant to search the mobile phone of an arrestee. One Texas federal circuit court held that a warrant is unnecessary, citing the long-standing rules that a post-arrest search is not limited to a search for weapons and that police may search an arrestee for evidence of the suspected offense for use at trial.
A California federal district court decided differently, saying a warrant is necessary. The court cited a reasonable expectation of privacy in the information in a cellular phone because it is "capable of storing immense amounts of highly-personal information."
The only state supreme court to deal with the question of the necessity of a warrant for a cellular phone search is Ohio. In December 2009, the Supreme Court of Ohio held that police need a warrant to search an arrestee's phone. The court analogized mobile phones to personal computers, which have an increased expectation of privacy, because today's phones "have the ability to transmit large amounts of data in various forms."
The U.S. Supreme Court briefly touched on the topic of Fourth Amendment protections for mobile devices in 2010. The court held that a public sector employer has the right to monitor its employees' communications on employer-provided electronic devices, for the purpose of ensuring that the employees are complying with the rules governing the use of the devices.
While the issue of search warrants, cell phones and personal privacy continues to be an ongoing issue between law enforcement and private citizens, if you've been arrested or searched in Michigan, an experienced criminal defense attorney can help you understand your rights. You do have rights, despite what law enforcement may want you to believe.
