The Privacy of Cell Phones

By:  Dee Wampler

Police are not permitted to search through the digital data of your mobile phone just because you may be on probation.  The government may have the right to search your “property” at any time as a condition of your probation.[1]

A probationer’s acceptance of a “search waivers” in a probation agreement doesn’t in itself justify otherwise unconstitutional searches.  You have a “substantial privacy interest” in your mobile phone and the data it contains.[2]

There is a limit on the price the government may exact in return for granting probation and very relevant factor is determining how long is the person’s expectation of privacy in a cell phone.[3]  Although the privacy rights of a probationer is “significantly diminished,” it is still substantial.

The search of the cell phone data might be required as an incident to an arrest (such as in a drug case).  If the cell phone is immediately associated with the person or a suspected crime, then a search may sometimes be justified.[4]

Even if officers were searching a car, they still probably would not be able in most circumstances to search your cell phone.[5]  When privacy-related concerns are weighty enough, a search of this type may require police to get a search warrant.[6]

[1] U.S. v. Lara, 98 Crim Law 540 (9th Cir. 2016).

[2] Riley v. California, (573 U.S. ____ (2014).

[3] U.S. v. Knights, 534 US 112, 117 (2001).

[4] People v. Diaz, 244 P3d 501 (Cal App 2011).

[5] U.S. v. Camou, 773 F3d 932 (9th Cir. 2014).

[6] Maryland v. King, 133 SCt 1958 (2013).