Photo: Brett Sayles

Can police see text messages?

In fact, in most states in America, a police officer is allowed to read over your texts and peruse other personal information on your phone whenever they want. The Fourth Amendment privacy rights and protections do not apply here. Right now, police officers can apprehend you for small crimes.

nyccriminalattorneys.com - Can Police Read Your Texts without a Warrant? - Spodek Law Group

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You won’t see a police officer coming into your house to look around if they don’t have a warrant. That’s against the law. On the other hand, there are some things the police can do without a warrant, and one of them is search your cell phone. The protection you have in your home does not extend to your cell phone. In fact, in most states in America, a police officer is allowed to read over your texts and peruse other personal information on your phone whenever they want. The Fourth Amendment privacy rights and protections do not apply here. Right now, police officers can apprehend you for small crimes. For example, they could apprehend you if you were simply jaywalking across the street. In doing that, they might also take a look at your phone to see if there are any larger crimes they could nab you for.

The fact that police officers can search your phone like this is frightening to a lot of people. Most individuals who own phones have them with them and on their person at all times. Furthermore, technology has advanced so much in recent years that a person’s entire life is on their phone. This includes addresses, phone numbers, recent calls, texts, emails, bank information and other personal data. Twitter and Facebook accounts are also linked to phones, which makes it easy for police officers to check out what people have been doing that could be illegal in their personal lives. If someone were to tweet about running a red light and just missing it, could that be grounds for a ticket? What if someone underage posts pictures of themselves and others drinking alcohol at their parents’ home?

Most people in America think that the police should have to have a warrant to search cell phones. You would expect that if a police officer can’t come into your home and look through your drawers and under your bed without a warrant, they couldn’t go into your cell phone and look around either. The problem is exacerbated when you look at what little good your password lock can do for you. Most of the biggest manufacturers of cell phones as well as most of the biggest cell phone service providers will help police officers if they need it. There are still a few states that have made it illegal for police officers to check out your cell phone whenever they might feel like it and without a warrant. These include Maine, New Hampshire, Rhode Island, Ohio and Florida. A lot of the other states have said that they want to allow police officers to continue to be able to search cell phones at their will and without warrants.

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As a precaution, if you have personal information on your cell phone that you wouldn’t want a police officer to see, just don’t keep it there. Use your cell phone for social things that wouldn’t cause you any trouble, and try to avoid putting your entire life with pictures, connections, data and everything else on the internet in the first place.

Can Your Silence Be Used Against You?

It is a refrain that is familiar to anyone who has been read their Miranda Rights or has watched a certain number of crime dramas: “you have the right to remain silent, and anything you say can be used against you in a court of law.” While this right to remain silent has been a cornerstone of the rights of those accused of crimes in the United States for decades, recent court challenges have added extra folds to the way remaining silent may or may not be used against the accused in court. Indeed, this right to remain silent may not be as lock-tight as it might otherwise appear.

What case led to this debate?

Though this right to remain silent might be assumed by many to last throughout an entire police investigation, this was clarified by a 2013 Supreme Court ruling based on a case raised against Genovevo Salinas for a homicide that occurred in 1992. Essentially, police began questioning Mr. Salinas prior to reading him his Miranda Rights (which include the right to remain silent) and Mr. Salinas provided answers. However, the defendant also did not answer a question that had to do with a weapon of his that was believed to be connected with this homicide. Prosecutors attempted to use this non-answer by Salinas against him in court, believing it reinforced his guilt. Courts in Texas, where the case was held, agreed that pre-Miranda silence is eligible to be used in a court of law.

The Supreme Court’s Ruling

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When this case came before the Supreme Court, the assembled justices ruled 5-4 in favor of the prosecution’s argument that a suspect’s silence prior to their being read their Miranda Rights is admissible in a court of law. The argument of these prosecutors – which the Supreme Court validated – was that because this suspect answered some questions and not others, he implicitly waived his right to remain silent and thus his silence could be used by prosecutors. Justice Alito referred to the right to remain silent as “not self-executiing;” that is, a suspect must explicitly claim it if they wish for their right to remain silent to be respected.

Future Considerations

Though this case was contentious enough to split the Supreme Court along ideological lines and muster only a 5-4 decision, it does send a strong message about the validity of the right to remain silent and when it may or may not be considered to be in effect. Essentially, a suspect’s right to remain silent is certainly in effect after the Miranda Rights have been read. However, if these rights have not been read, then the right to remain silent is not implied and a suspect answering police questions may be considered to have implicitly waived the right to remain silent. As far as practical considerations, it means that suspects and defendants must be particularly vigilant about their rights as subjects under investigation and note that silence may sometimes be admissible.

nyccriminalattorneys.com - Can Police Read Your Texts without a Warrant? - Spodek Law Group

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