If you have been following our blog, you have read our discussion on a surveillance device that St. Louis police officers have been using to track targeted cellphones. The technology built into the StingRay device tricks cellphones into providing data by mimicking transmissions from cellphone towers without notifying cellphone owners. The device is portable, enabling law enforcement to drive through streets capturing information from the targeted phone and any other phones that are in close proximity. That the police can capture data and have been employing these devices covertly concerns the ACLU and other civil liberties organizations. These groups fear this data retrieval amounts to a warrantless search.
Such a concern is valid because Missouri law protects the privacy of data on cellphones. In 2014, an amendment to the state constitution passed requiring law enforcement to obtain a warrant to access electronic communication stored on cellphones and laptops. This legislation prevents officers from obtaining records from cellphone companies and bans them from seizing the phone from individuals in order to access the phone data. There are some limits to the protections extended by this amendment, however.
These circumstances allow law enforcement to seize and examine your phone:
1. Physical examination
Police officers may seize a cellphone to determine that it is not concealing a weapon, such as a razor blade. In this situation, the examination of the cellphone is a physical one that does not involve data access.
2. Phone seizure
Should police officers suspect that the data recorded on a cellphone contains evidence of a crime, they can seize the phone, remove its battery, and store the phone and its components until they obtain a warrant. Upon receiving the appropriate documentation, they can access the phone’s data.
3. Exigent circumstances
As with home entry, accessing a phone without a warrant is permitted in what is called an “exigent circumstance.” This phrase refers to an emergency situation that requires quick action to prevent a crime from occurring. If police officers believe accessing phone records will stop a kidnapping or prevent a suspect’s escape, their actions are legal.
Under Missouri law, a routine traffic stop will not justify phone seizure. If you are pulled over in this situation, you are not required to hand over your cellphone, provide your password and give law enforcement your phone data.
Those who believe their cellphones were taken and accessed illegally should contact a knowledgeable attorney for advice about the best course of action to take to remedy the situation.