If you are buying drugs over a cell phone, and trying to avoid a cell phone drug bust, an ounce of prevention is worth a pound of cure. You need to take some basic cell phone safety precautions because law enforcement has been known to use all evidence at their disposal, even cell phone data.
It occurs all too often—an officer just picks your phone up and starts rummaging through your text messages to see who your dealer is. Without any consideration for your personal privacy, many members of law enforcement will answer phone calls or even send texts to try and generate some more offenses and or another drug bust.
Recently, the Supreme Court has ruled that cell phone data is protected and the police must have a warrant to search your phone. Anything else is in direct violation with the U.S. Constitution’s Fourth Amendment.
“Modern cellphones are not just another technological convenience,” wrote Chief Justice John Roberts. “With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” For police who feel they need to have access to a suspect's device, Roberts had one simple instruction: “Get a warrant.”
Exceptions are sometimes made to constitutional protections, however. This is because of the severity of the ongoing drug war. Most judges will always be on the side of the government. Also, not all cops play by the rules. Just because the Supreme Court said police must now change the way they do their jobs doesn't mean they will—or at least not immediately. One must also take into account that most snitch deals are never seen in court and a law enforcement officer may look at your phone anyway just to see who is in your network of friends without intending to use the evidence against you.
Warning, first a disclaimer: a warrant and a skilled forensic technologist can find pretty much anything on your I-Phone, IOS, Android device; however, with the right settings/apps/common sense you may be able to get through most situations (i.e. traffic stops and common police encounters) without getting yourself in more trouble than the initial detention.
So, what is a law-abiding citizen like yourself supposed to do if an officer tries to snoop on your phone without a warrant? Here's what:
Deny Consent. If a police officer begins to search your phone, calmly and respectfully tell the officer that his search is in violation of the Constitution under the court's Riley decision (Riley v. United States is the name of the court case that triggered this new search warrant rule.) But don’t stop there. If arrested, you should repeatedly state to the arresting officer and any nearby witnesses that you do not consent to this search. This helps ensure that there is no question or ambiguity about whether you've consented to the search. You don't want to be in a situation where there's any doubt.
If you're not under arrest—say, you just got pulled over for a blown tail light—then you have absolutely no obligation to consent to a search of your phone, your car, or your person.
Don’t get unruly. Do not physically resist an officer or attempt to physically stop the search. In an arrest situation, you have no power, and you're just going to make the situation worse. If an officer decides to search your phone despite the fact that you did not consent, your best option is to let him or her do it, but take note of who the officers are that are conducting the search and then consult with a lawyer. Leave whatever fight may come to be settled in the court room.
Have a password. A password is the bare minimum you need to keep prying eyes away from your data. It may be a pain in the neck to log into your phone every time you want to do something, but if you don’t you want your family, friends, and nosey law enforcement snooping, it’s best to use a password. As mentioned above, the police have no qualms about reading your text messages and setting up your friends in a fake drug bust.
Encrypting your phone. Encryption turns your cell phone data into nonsense, rendering it completely unreadable. When you power on your phone, you’ll have to enter the encryption PIN or password, which is the same as your phone’s lock-screen PIN or password. Your phone uses your PIN or password to decrypt your data, making it understandable again. If someone doesn’t know the encryption PIN or password, they can’t access your data.
Keep your texts clean. You should be very wary if you get a random text from someone who you don’t know that mentions drugs. Always assume that the source of a suspicious text is the police. If you are not 100% sure who is texting you, do not respond. If you are mostly sure and it’s about something potentially illegal, don’t respond. As stated numerous times throughout this blog, the police can use your friend’s cell phones to bust you—and they will.
Texting apps with privacy features. There are many apps and programs out there that will immediately delete texts off of the receiver’s phone. Texts are forever, and the statute of limitations for drug cases are usually a couple of years.
Also consider a VPN, which will hide your IP address and keep your online activity a secret. Many people like to use them for public Wi-Fi safety, and the added bonus is it will make advertiser tracking more difficult.
The Catch
Despite the strong privacy protections established in the court's Riley decision, police still have the right to search your phone without a warrant in a few scenarios. These are called “exigent circumstances,” and include the abduction of a child, suspecting a person is in imminent harm, or that there is some imminent threat of evidence destruction. Fortunately those kinds of circumstances should be very rare.
If your rights have been violated and you need help, leading Nebraska attorney Daniel Stockmann has established a strong reputation throughout his 15 year criminal defense career as a lawyer who possesses vast knowledge of how to protect your constitutional rights.
