Never has the security of our electronic information been more important. Phones and other electronic devices now have the capacity to store our life’s most important information to be accessed in an instant. Nearly everyone’s phone contains tons of information we’d prefer remain private. From passwords to pictures, Google search history, websites visited, images and files accessed, downloaded or shared, places we’ve traveled, with whom we’ve associated or communicated, social media posts made and reviewed, emails and text messages, banking and financial information, even our love interests – it’s all a touch away from the Government’s prying eyes.
Consider this hypothetical
Imagine for a moment that you’re driving on your local main road. You’re going slightly over the speed limit but nothing crazy. Suddenly, an officer starts following you. The officer turns on the patrol car’s sirens and you pull over. You’re told you were pulled over for speeding, but something seems off. You can tell the officer suspects something more than just speeding.
The officer says that your car matches the description of a car used in illegal drug activity and asks to search it. Seeing as how you’re not a drug dealer and have no reason to be concerned, you allow the officer to search your car.
Stepping out of the car, you realize your phone is still sitting on the passenger seat. You think for a second, “should I grab it?” But you ultimately decide to leave it on the seat. Can the officer now look through your phone for evidence of illegal drug activity? After all, you left it in the car you just gave the officer consent to search. Does this consent extend to the electronic data on the phone? You can bet the prosecutor thinks it does, and will likely make such an argument in court.
Have the courts decided this issue?
Questions like the one in the above example have been answered by the Supreme Court of the United States. In Riley, the Court unanimously held that after arresting someone, the police generally may not search that person’s cellphone without a warrant.
What about the Constitution?
The Fourth Amendment of the United States Constitution, having been written long before the age of 5g, failed to mention cell phones as among the places a person has a right to be “secure” meaning in this context, kept private. The impossibility of writing a Constitution that will be forever relevant and inclusive is why we have courts that interpret the Constitution and what it should mean today. The Court in the Riley case, therefore, interpreted the Constitution to make its decision. But that was a federal court interpreting the federal Constitution. What does the Constitution of Michigan say on the subject?
Before the most recent election, the pertinent part of Article 11 of Michigan’s Constitution similarly made no mention of cell phones or other electronic devices. However, on November 2, 2020, the voters of the State of Michigan saw fit to pass an amendment to Article 11 to make it clear that the Searches and Seizures article of the Constitution of Michigan should apply to electronic devices . The Amendment passed by a margin of 4,472,671 to 567,130. The Constitution of Michigan now reads that a warrant is required to search electronic data and communications are protected for unreasonable searches and seizures, and places such information and data on par with a person’s house.
The Amendment to Article 11 of the Constitution of Michigan went into effect on December 19, 2020. Although some police departments had a policy of requiring warrants before searching cell phones this Amendment makes it abundantly clear how officers must proceed if they want to search electronic devices. It’s also important to note that all of the many exceptions to warrant requirement apply to electronic data. The most common exception is consent. Just as consent is an exception to the warrant requirement that might otherwise apply to your home or car, you may give consent to search your phone. If you give consent, the police never need a warrant.
If your electronic device was searched during an arrest in Michigan without your consent, the Barone Defense Firm can help. If a warrant was not obtained, or if your consent was unlawfully obtained, then a motion can be filed to throw out the evidence obtained from that search. If a warrant was obtained, the warrant and the information submitted to get a judge to sign the warrant must be obtained and analyzed for probable cause. In either case, the best Michigan criminal defense attorney is required to give yourself the best chance at success.