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November 12, 2014

Cell Phones And Your Fourth Amendment Rights

By Michael H. Joseph

A criminal court Judge in Brooklyn recently issued an interesting decision which is a milestone in an evolving area of criminal defense and civil rights law. The issue involves the question as to under what circumstances a police officer may search a citizen’s cell phone looking for evidence of criminal activity. The Supreme Court has already determined that a warrantless search of the contents of a cell phone is unconstitutional, unless supported by probable cause.

In People v. Weissmann, a Court officer suspected that a person in the Courthouse had taken a picture of him and ordered him to display all of the photographs on his cell phone. Upon inspecting all of the pictures the officer found a picture of a victim from a pending high profile case, where a Judge had ordered that no one photograph or video the victim. After finding the victim’s photo the court officer charged Weissman with criminal contempt for violating the order. The State attempted to justify the offer the argument that the defendants actions were voluntary because he voluntarily complied with the officer’s request, which was merely a common law inquiry. The Judge correctly rebuffed the contention by holding that the defendant was compelled under the threat of arrest and submitted to a show of authority, consequently his actions were not voluntary. While the officer can ask to see the contents of a phone, a citizen still has the right to refuse to comply. The Court went on to note that since the officer had a reasonable suspicion of criminal activity and was allowed to seize the phone, however he did not have the right to order the defendant to display the contents of the phone. Phones nowadays are mini-computers where people store highly personal information, such as intimate conversations via text, confidential business information, as well as personal pictures. As such, the Constitution recognizes that citizens have a legitimate expectation of privacy as to the contents of their cell phones and the government cannot arbitrarily conduct warrantless searches.

The end result was that the evidence was suppressed and the criminal contempt charges will likely be dismissed. While our Westchester criminal defense lawyers don’t approve of the defendant’s actions, it is nevertheless a positive development in the law for our New York City Lawyers who believe in the firm defense of Constitutional rights and civil liberties. Without bold holdings like this the police would be allowed to randomly search the content of phones, including emails, texts and photographs on everyone’s phones whenever they wanted. This would lead to more official endorsement of abusive and invasive police practices like the New York City Police Department’s policy of stop and frisk. Sadly even though every officer takes an oath to support and protect the Constitution, in New York and around the country. criminal defense attorneys are becoming the protectors of the very basic civil liberties that most Americans take for granted.if a line isn’t drawn which stops invasive police practices one day there will be no lines left. It is up to New York lawyers to continue to good fight to keep our civil liberties alive.

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