In 2012, about five years after the iPhone’s debut, only about a third of Americans had a smartphone. Then, these gadgets took off, mostly because of the exploding app market and internet-based memory storage. As of March 2021, almost 90 percent of Americans owned a smartphone.

Ironically, most people spend very little time talking on their phones. They text, post, record video, download images, and do other things which are fun, but could also cause lots of trouble, for themselves or for someone else.

As is often the case, the law hasn’t kept up very well with this emerging technology. Distracted driving is a good example. Many states did not pass hands-free laws until well into the smartphone era. Some still haven’t done so, mostly citing privacy concerns.

These privacy concerns are also an issue in criminal court. Since these concerns are so important, as outlined below, and the law is rather antiquated, top-notch legal representation from a Minnesota defense lawyer is essential in these situations. That’s usually the only way to ensure that judges and juries respect your legal rights.

Location Tracking/Information Sharing

Smartphones have embedded CLSI (Cell Site Location Information) trackers. Every time the phone connects to a cell tower, the tracker generates a timestamped record. These trackers are separate from GPS location information. Users can easily disable the GPS tracker. It’s impossible to disable the CLSI tracker.

2017’s Carpenter v. United States covered this issue. The Supreme Court ruled that officers must have search warrants before they can access CLSI tracking data. In this case, the FBI tracked Timothy Carpenter for about three months, collecting almost 13,000 separate location hits. That volume of information was damning at his robbery trial.

That rule seems straightforward enough. But many service providers voluntarily give up this information, almost upon request. Therefore, even if officers didn’t have a warrant or even probable cause, CLSI tracking data is usually available. This information can almost conclusively place a person at a certain place at a certain time.

On a related note, the Supreme Court also held, in a 2012 case, the officers must have search warrants or probable cause before they attach GPS locators to suspect vehicles.

The bottom line is that if prosecutors try to use CLSI, GPS, or other tracking information against you, a Minnesota defense lawyer can usually exclude that evidence, unless the cops had the owner’s permission to access the data.

Smartphone Searches

Owner consent is also an issue in this area. In terms of user-entered information, officers are usually most interested in text message logs and image downloads. The Supreme Court has ruled, in 2014’s Riley v. California, that cell phone owners have a reasonable expectation of privacy in everything past the home screen. So, if they want to look at use logs or anything else, they must have, wait for it, a search warrant or probable cause.

As was the case with CLSI tracking, owner consent could provide probable cause. If an officer asks for your password or otherwise asks for consent to search your phone, and you know there is bad stuff on there, you don’t have to say “yes.” There is a vigorous debate, even among Minnesota defense lawyers, as to whether you should say “yes.”

There’s an old saying that if you dig yourself into a hole, you need to put down the shovel. Since nothing good happens if you refuse consent, you should provide it.

From a legal perspective, however, things are different. If officers ask for consent to search, that usually means they don’t have probable cause. So, your refusal could keep this evidence out of their hands.

Although you have the right to refuse, there are consequences. A refusal to allow a smartphone search practically guarantees your arrest. But if you are having this conversation with a police officer, your arrest was probably inevitable anyway.

Court supervision is the biggest exception to the voluntary consent rule. Frequently, as a condition of probation or parole, defendants agree to warrantless searches at any time. So, in these situations, if you don’t consent to a search, you are in violation of your parole or probation.

Filming Police Officers

This final smartphone area is perhaps the murkiest, most misunderstood, and potentially most explosive smartphone privacy issue.

Many people believe the First Amendment gives them the right to film police officers as they conduct their official duties. But that’s not accurate. First Amendment protection only applies to a fundamental right. As of April 2021, some circuits have explicitly ruled that filming the police is a fundamental right. Others have issued the opposite ruling. The Supreme Court has yet to weigh in on this issue.

Even if you do have a fundamental right, police officers may impose reasonable time, place, and manner restrictions. These restrictions could be things like distance requirements, no-flash requirements, and a live streaming prohibition.

About the Author

Gerald Miller is an attorney in Gerald Miller, P.A., a Minnesota criminal defense firm. In addition to airline no-flight defense, Gerald routinely handles DWIs and other serious criminal offenses. He is a widely respected attorney who knows what it takes to beat criminal charges in court. Click here for more information.