You probably know that the Constitution protects you from unreasonable search and seizure, but many people have no idea how many things are not protected by those rights. We’ve already talked about some search and seizure issues, including the fact that police cannot search your cell phone without a warrant and that they can search your car without a warrant if they have “reasonable suspicion” to do so, but you might be surprised to know what they can do without a warrant. If you have any questions about what police can or cannot do legally, be sure to ask your defense lawyer.
Warrantless Searches of Emails and Texts
Under the 1986 Electronic Communications Privacy Act (ECPA), police can legally search any of your texts or emails that are over 180 days old and stored on a cloud server. While privacy experts and criminal lawyers from Del Mar to Virginia Beach have fought for an overhaul of the ECPA given that it was written and enacted long before the average person used email, let alone text messages and we started putting our whole lives online, change has been slow. Last year the Email Privacy Act, which would update the ECPA and require police to obtain a warrant to access these electronic records, was passed in the House of Representatives, but it was stalled in the Senate and has yet to make any progress.
Police Access to Your Social Media Profiles
Any data you make available to the public can be accessed by police as well. While this might not be all too surprising, you may be shocked to learn that police can go further than that by creating fake social media accounts in order to get access to private profiles and private postings. It’s certainly something to remember next time you get a friend request from an attractive stranger or someone you haven’t seen for a while.
Searching Phone Records and IP Addresses
Police can’t actually listen to your phone calls without a warrant, but they can see who you called and when all thanks to a 1979 Supreme Court decision that determined call logs are not protected by the Fourth Amendment. All they need to do is provide a subpoena to the phone company, which doesn’t even require judicial approval in many cases. The process for obtaining an IP address is pretty much the same.
Police Don’t Need a Warrant for DNA Samples
Perhaps the most shocking thing police can do without a warrant is collect a DNA sample. While police have to have a warrant to do a cheek swab or remove a hair sample directly from your body, there are a number of other ways they can obtain your DNA without notifying you or obtaining a warrant. The process is called “surreptitious sampling” and it occurs when a person leaves a DNA sample behind somewhere.
It doesn’t matter whether because the suspect smoked a cigarette and threw it away in the trash in front of a police officer or had a cup of water during a police questioning and threw away the cup in the interrogation room trash can, if police can get an uncomprimised DNA sample from something a suspect threw away, they can. In fact, they can even swab a chair you sat in to get a sample from your sweat.
While some courts have upheld the practice, treating the DNA like anything else you have discarded, attorneys and privacy experts have argued that people shed DNA samples everywhere and the only way a person could protect themselves from such searches would be to wear a bio-hazard suit all the time.
Asking for Permission for a Search
If you consent to letting the police search your property, they no longer have to obtain a warrant. In most cases, you cannot later object to a search if you have already consented to one, which is why police will often casually discuss letting them “take a look” at your property while telling you that they are just trying to rule you out as a suspect. Another tactic they often use to obtain your consent is by telling you that they will just get a warrant if you don’t consent. While it’s true that they may get a warrant, they also might not be able to get one, but if you consent to a search, you can’t take away that consent later. This is another reason you should never speak to the police, even casually without a lawyer present.
The Fourth Amendment protections against unreasonable search and seizure are quite complex and have been interpreted many ways in different courts. If you have questions about your rights under the Constitution, please call (760) 643-4050 or (858) 486-3024 to schedule a consultation with Peter M. Liss.
Creative Commons Image by Randen Pederson