BYOD & COPE Evidence - Arrest and Prosecution what a Judge might do during a civil action and a criminal investigation when considering cell phone data.

What Might a Judge Do? BYOD and COPE Part 3: AN ARREST AND PROSECUTION

September 13, 2016

Author – Ronald J. Hedges

BYOD & COPE Evidence - Arrest and Prosecution what a Judge might do during a civil action and a criminal investigation when considering cell phone data.

The last few weeks we have discussed what a Judge might do during a civil action and a criminal investigation when considering cell phone data.

As a reminder, during this blog series, we are examining facts from the viewpoint of a court that must apply legal principles to the facts as outlined here:

‘X’ is employed by a corporation. She was issued the latest version of a cell phone by the corporation (“the corporate phone”). X had a choice between accepting the corporate phone and using it exclusively for business purposes while keeping an earlier model cell phone she owned (“the personal phone”) or merging the data from the personal phone into the corporate phone. She chose the latter because she did not want to carry two phones. When she made the choice, X signed a document by which she acknowledged that the corporate phone and all content was the property of her employer.

AN ARREST AND PROSECUTION

Assume that X was operating a vehicle under the influence of alcohol and became involved in an accident. When the police arrived on the scene and observed X she was arrested for driving under the influence. At the time of her arrest, an officer demanded that X turn over the corporate phone. The officer opened the phone and was able to scroll through its content that included images of X drinking at a party shortly before the accident. X has moved to suppress any evidence derived from the phone.

What might a judge do?

A judge would likely grant the motion and suppress the evidence. A warrantless search is presumptively unconstitutional and is justifiable only if an exception to the Warrant Requirement of the Fourth or Fourteenth Amendments apply. In Riley v. California, 134 S. Ct. 2473 (2014), the United States Supreme Court held that a warrantless search of a cell phone could not be justified by the “incident to arrest” exception to the Warrant Requirement. However, the Supreme Court left open the question of whether other exceptions might justify a warrantless search. For a post-Riley decision which addresses the meaning of “search” and exceptions to the Warrant Requirement see State v. Subdiaz-Osorio, 849 N.W.2d 748 (Wisc. 2014).

Join us here next week to hear more about BYOD, X and a new twist to consider.

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