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Connecticut criminal defense attorney for digital evidenceThe Fourth Amendment to the U.S. Constitution states that all citizens have the right to be free from unreasonable searches and seizures by the government without a warrant. This provides protection against unfair tactics by prosecutors when a person is facing criminal charges. However, in the 21st century, the increased use of digital media has resulted in a slew of complexities in criminal cases. The Fourth Amendment was written to protect the privacy of American citizens, but what happens when your private digital files are no longer private to only you? In some cases, the “private search doctrine” may apply.

What Is the Private Search Doctrine?

Using the private search doctrine, once a private party (who is not involved with the government) has already done an initial search, the government can repeat that search without infringing upon the property owner’s individual Fourth Amendment rights. Basically, the private search doctrine allows the government to perform a search that is not technically a search in the Constitutional sense.

A Recent North Carolina Case Sparks Controversy

In 2014, a North Carolina woman was looking for a photograph on her boyfriend’s USB thumb drive. While she was clicking through folders and subfolders on the drive, she came across a partially-nude photo of her nine-year-old granddaughter. Upset, she stopped her search and informed her daughter of the photo. The pair took the thumb drive to the police station, where a detective began to look through the folders to find the photo the woman was referring to. While the detective was looking, he saw other photos that he thought might be child pornography. Once he found the photo of the woman’s granddaughter, he stopped his search and obtained a warrant to search the thumb drive for photos of child pornography.

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BAC test, Hartford criminal defense lawyerIn late April, the nation’s high court heard oral arguments in a case whose impact could be felt around the country. At issue before the Supreme Court is whether or not criminal penalties for refusing blood-alcohol content (BAC) test without a warrant violate a person’s Fourth Amendment rights. As it currently stands, 13 states maintain laws that make the refusal of such tests a crime, separate from the offense of driving under the influence (DUI). Many other states, like Connecticut, provide administrative penalties for refusing such a test rather than criminal prosecution.

Driving as a Constitutional Right

While the United States Constitution was drafted before the advent of the automobile, many believe that the ability to drive should be considered a right, not merely a privilege. The distinction is very important, as a privilege can more easily be conditional, while a right must be protected.  The U.S. Supreme Court has never ruled that driving is a constitutional right, but has explicitly recognized the right to travel. If driving is a right, then a driver cannot be asked to waive his or her Fourth Amendment right to be free from unreasonable warrantless searches as a condition of driving.

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cellphone data, court ruling, Hartford criminal defense attorneyAccording to estimates from the Pew Research Center, nine out of ten American adults own a cell phone. Some two-thirds of them are smartphones with the ability to run many of the same functions of a desktop computer with the added convenience of local and global positioning systems. In June 2014, the U.S. Supreme Court recognized the privacy concerns present with such devices and ruled that law enforcement must obtain a warrant before conducting a search of a suspect’s cellphone. The line, however, is a more unclear when it comes to using cellphone data in a criminal investigation, as highlighted in a recent ruling by a Connecticut Superior Court judge.

Lacking Law

In 2005, the Connecticut state legislature quietly passed a law that allows law enforcement to access the cell phone records of citizens without necessarily requiring a warrant. Throughout the last decade, police have obtained more than 14,000 orders to access records, many of which permitted police to read the content of text messages and track the phone’s location, according to David McGuire, a staff attorney for the American Civil Liberties Union (ACLU) of Connecticut. He also indicated that the law requires that the owner of the phone be notified when his or her data is accessed, but that the requirement seems to be often ignored.

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mobile phone, tracking, Connecticut Criminal Defense AttorneyMost Americans understand the general protections offered by the Fourth Amendment to the U.S. Constitution. Its provisions are meant to guarantee the security of people, their homes, papers, and effects against unreasonable searches and seizures. Only a warrant, based on probable cause, is to give the government the power to override a person’s right to privacy.

The digital age, however, continues to offer new and increasingly ambiguous challenges to the application of law enforcement as it pertains to the Fourth Amendment. The latest example, involving the use of mobile phone records without a warrant, is now headed to the U.S. Supreme Court, a case that is likely to set a precedent for many future decisions.

United States v. Quartavious Davis

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