Our blog, focusing as it does on commercial law and appeals, rarely touches on criminal matters. We have opened that door at times, however, if only to emphasize the most frequent sources of appeals, one of which is the admissibility of evidence.
We do so again as the Supreme Court’s 2013-14 term added another piece to the puzzle with its cell phone ruling, which, while it occasioned cheers on one side and howling on the other, can now be looked at with greater serenity.
Usually, the police needs a warrant to seize evidence. Usually, but not always. For example, if one is lawfully placed under arrest, the police may search for and seize evidence there and then without a warrant, but limited to two circumstances: to protect themselves (looking for weapons and the like) and to prevent the destruction of evidence. They may also catalogue, but not search, the arrestee’s belongings, so they may be returned at the appropriate time.
That is the exception to the warrant requirement that the police were relying on to look through arrestees’ cell phones. No longer. They can still take the cell phone away from an arrestee, but they cannot rifle through its contents without first obtaining a warrant. Nothing in the phone will threaten the officers’ safety, and the prospect of evidence being remotely deleted can be prevented without conducting a warrantless search.
Criminals should not rejoice. Their cell phones will still be searched whenever that is necessary for efficient law enforcement – it will only take a bit longer, with a warrant. But those arrested for a reason completely divorced from anything that could possibly be found on their cell phones will see their privacy better protected. And in the middle, judges, one might hope, will learn to draft warrants striking the balance the Supreme Court is looking for, such as one, for example, allowing the police to look at pictures but not contacts, or vice-versa, depending on the kind of evidence relevant to the case.
The Bench will, by necessity, rely on members of the Bar, highlighting once more the need for competent representation and attorneys who will craft careful arguments, helping their clients by helping the judiciary interpret the law correctly.