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Cellphones may be small, but they hold a lot of evidence

Privacy is one of the most important rights that we have as citizens. This right works in tandem with a citizen's Fourth Amendment protection against unreasonable searches and seizures. So where does the balance lie between the right to privacy and an officer's ability to search and seize a suspect's property? The answer lies in the use of search warrants. These documents grant special access to items that belong to a suspect whether they are a small box or a large home.

Cellphones have created a particular area of confusion in the practice of evidence gathering. The small devices have become increasingly mobile and are a treasure trove of evidence for law enforcement officers, especially in drug investigations. They not only provide for the traditional wiretapping evidence, but they also contain written conversations in both text and email format, GPS locating evidence, photographs and videos. Some of the most intimate details of an individual's life can be found on these devices, so why are courts so inconsistent on whether officers need a search warrant to access them?

The Electronic Communications Privacy Act is federal legislation that was enacted in 1986 and is often cited as the basis for the warrantless surveillance of some cellphone data. The act was not only written well before the eruption of cellphone use, but the amendments to the act can't seem to keep up with the changing times.

A Senate committee is set to discuss even more amendments to the act beginning on Thursday involving warrants and cellphones in an attempt to create consistency in treatment of the issue. An example of one of these changes is to eliminate the 180-day threshold for warrantless access to old emails. Instead, the amendment would make access to all emails, no matter how old the emails are.

Source: The New York Times, "Courts Divided Over Searches of Cellphones," Somini Sengupta, Nov. 25, 2012

Ensuring that no illegally obtained evidence makes its way into a court of law is only one protection our Waukesha defense firm provides for those who face drug charges, whether state or federal.

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