Criminal Attorney Oklahoma Defense Lawyer Adam R. Banner OKLAHOMA CRIMINAL DEFENSE ATTORNEY AT LAW

The Oklahoma Legal Group Blog

Can the Police Get in My iPhone?

Adam Banner - Thursday, May 26, 2016

Cell phones have been at the heart of privacy issues and Fourth Amendment issues for some time, but with the temporary stand-off between Apple and the FBI over access into the iPhone of San Bernadino shooter Syed Farook, the debate came to a head.

The FBI said that the phone may contain information vital to national security and public safety. Apple said that it was unable to circumvent its own security measures and would be unable to assist the FBI in hacking the phone. The FBI said that answer wasn't good enough and tried to get a court order to force Apple to build a backdoor into the phone that would allow them to access the data stored on the device. Apple continued to state that it would not violate its own security measures, even in defiance of a court order.

But soon, the FBI withdrew its request for a court order, saying that the agency has cracked the iPhone without Apple's help. The agency did this by purchasing "a tool" from a third party that allowed the FBI to circumvent a security feature that locked the phone when an incorrect password was entered.

Once the FBI announced it gained access to the phone, iPhone users--and indeed virtually all cell phone users--began to wonder if their data and personal information were safe. If a third party could gain access to the phone and sell its information to law enforcement, couldn't it also sell that information to someone who might use it for more sinister reasons?

So can the police get in your iPhone? It is certainly possible, given what we know about how the FBI hacked the iPhone 5c belonging to Farook. So instead of looking at whether law enforcement can technically get in your phone, let us look at whether or not they can legally get in your phone.

The Fourth Amendment to the United States Constitution offers protection from "unreasonable search and seizure" and requires probable cause and  search warrant:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Although a search warrant is required in most cases, there are ways an officer can legally circumvent a search warrant. These include a person providing consent to the search (note: do not give consent to a search) or a general exception for the search of a person incidental to arrest. 

However, searching a person--for example, to find a weapon or drugs on the person--and searching a cell phone present on the person, are not the same thing at all. The information on the phone likely does not provide any safety threat to the officer, and the search of a phone which contains almost infinite personal data in this age can be a serious violation of privacy.

In June 2014, the United States Supreme Court ruled in Riley v. California that the warrantless search of a mobile device is unconstitutional. In its unanimous opinion, the Court said, "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. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple--get a warrant."

So can law enforcement get in your cell phone? Yes--but they need a warrant and the technology to do so. 


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