How the Constitution protects electronic data

On Behalf of | Jun 16, 2021 | Criminal Defense

Texas residents store a great deal of personal and confidential information on their computers, cellphones and other electronic devices, and the Fourth Amendment protects this data from unreasonable government searches and seizures. This means that police officers cannot search electronic devices unless they are given permission or obtain a search warrant. When police are given permission to search an electronic device, they must stop searching if the permission is revoked. However, police may proceed without a search warrant when they have exigent circumstances, and the courts have ruled that they may take action to prevent evidence of criminal activity from being destroyed.

Deleting information

Destroying drugs or weapons is difficult and takes time, but electronic data can be deleted in a matter of seconds. This made the search of computers and cellphones incident to an arrest a contentious legal issue. Suspects and their vehicles are routinely searched following an arrest for weapons and other evidence, and the courts have allowed this as prohibiting searches incident to an arrest could place police officers in danger. However, in the 2014 case Riley v. California the U.S. Supreme Court ruled that searching electronic devices after an arrest violated the Fourth Amendment because the information they contain poses no danger.

The Fifth Amendment

The information stored on electronic devices is often protected by the Fifth as well as the Fourth Amendment. This is because a user name and password is usually required to access it. The courts have ruled that providing passwords or encryption keys is the same as giving testimony, and the Fifth Amendment states that people accused of committing crimes should not be compelled to testify against themselves. When police violate rights guaranteed by the Constitution, criminal defense attorneys may argue that any evidence they obtain as a result should be excluded.

Police searches

Experienced defense attorneys may also seek to exclude evidence discovered during a warranted search if the police officers involved looked in areas not specifically mentioned in the warrant or lacked sufficient probable cause to obtain permission to search. If a police officer asks to search your cellphone or computer, an attorney would likely advise you to withhold consent, ask to see a search warrant, and call a lawyer.