The data police can and cannot obtain from a cellphone or GPS tracking device without a warrant has been a frequent subject of legal dispute in recent years. The U.S. 7th Circuit Court of Appeals recently weighed in on the subject, ruling that police can look at a cellphone without a warrant to obtain the cellphone's number. Gaining the phone's number allows police to track the cellphone's call history and location by contacting the cellphone's carrier.
The issue arose from a case involving an alleged drug crime. Police found a cellphone on the suspect, Alberto Santana-Cabrera, at the time of his arrest. They used the cellphone to obtain its number, and then subpoenaed the carrier to find a call history on the cellphone for three months prior to the arrest. That information was used to convict Santana-Cabrera.
Santana-Cabrera appealed the conviction, arguing that because police did not have a warrant to search his phone, the evidence that resulted from the search of the cellphone was obtained in violation of the Fourth Amendment's protection against unreasonable searches and seizures and was thus inadmissible in court. However, the U.S. Court of Appeals likened the police action in this case to police reading a suspect's diary to find a home address, an action that previously has been ruled as a reasonable warrantless search and seizure, and said that obtaining the phone's number without a warrant was legal.
Cellphone Use and GPS Tracking
Cellphone tracking is a murky area of the law. A recent ruling by the U.S. Supreme Court held that officers may not place a GPS tracking device on a suspect's car without first obtaining a warrant. However, the American Civil Liberties Union has brought to light that authorities at the U.S. Department of Justice have been contacting wireless providers to obtain information on the current and past locations of suspects through their cellphone GPS devices - all without a warrant - for years.
The ACLU's concerns prompted U.S. Senator Al Franken (D-MN) to write to the DOJ in May, 2012, asking how frequently this practice occurs, and writing that this would violate the "spirit if not the letter" of the Supreme Court ruling on GPS tracking. It is unclear whether higher courts would find the current practice of the DOJ constitutional.
Exclusionary Rule and Constitutional Protections
Under the exclusionary rule, any evidence obtained in violation of the Fourth Amendment or other constitutional protection cannot be used as evidence in court. In addition, under the "fruit of the poisonous tree" doctrine, all evidence obtained as a result of the violation is also inadmissible in court. This means that, had Santana-Cabrera prevailed on his appeal, prosecutors could not have used the three months' information on his call history in court - making it much more difficult for prosecutors to obtain a conviction against him.
If you have been charged or convicted of a drug crime that involved a warrantless search or seizure of a cellphone, tablet or computer, contact a skilled criminal defense lawyer who can ensure the police did not violate your constitutional rights when obtaining evidence.