Procedures for Searching Phones & Obtaining Records

by Eric Snow
Investigator
Montgomery County Sheriff's Office
E-mail:  snowes@montgomerycountyva.gov

 

Recently, the US Supreme Court issued an opinion that routine cellular phone searches were not covered under the search incident to arrest exception to the warrant requirement of the Fourth Amendment (for further discussion on this decision see Jack Call’s article in this bulletin).[1]  This decision, along with modifications to the Code of Virginia, requires law enforcement agencies to adapt current policies and procedures relating to searches of cellular phones and records associated with these devices.

Searches or examinations of cellular phones by law enforcement require a search warrant, unless consent is obtained or exigent circumstances exist.  The procedure for obtaining a search warrant for content contained in the phone would be virtually the same as a search warrant obtained for a residence or business.  The standard affidavit should be used and must include the relevant code section, a detailed description of the items to be searched for, a statement of probable cause, and a statement of the credibility of the informant.  The exact nature of the items to be searched for within the phone will vary depending on the facts of the case and the probable cause.  For example, an officer searching a phone for a video of a fight will likely not have probable cause to search the call log of the phone, but an officer with probable cause that illicit communication has occurred using the phone may have probable cause to search text message, email, and social media content.

The Code of Virginia provides statutory guidelines for obtaining records from electronic communication or remote computing services as well as real-time tracking of cellular phones.  Section 19.2-70.3 of the Code defines real-time tracking as “any data or information concerning the current location of an electronic device that, in whole or in part, is generated, derived from, or obtained by the operation of the device”.  This means law enforcement can obtain information about a cell phone’s exact location from the service provider based on GPS or cell phone tower locations.  The procedure for obtaining records relating to electronic communication or remote computing services is governed by section 19.2-70.3 of the Code of Virginia.  This section states the holder of these records “shall disclose a record or other information pertaining to a subscriber to or customer of such service, excluding the contents of electronic communications and real-time location data, to an investigative or law-enforcement officer only pursuant to” a grand jury subpoena, a search warrant, a court order, or consent of the subscriber.  For the purposes of this section, a foreign corporation is a company physically located outside of Virginia that operates or offers a service in Virginia.  A statement indicating a business is a foreign corporation and “that the complainant believes that the records requested are actually or constructively possessed by a foreign corporation that provides electronic communication service or remote computing service within the Commonwealth of Virginia” is required for each search warrant.

A court order for records is not required to meet a probable cause standard, but must show “there is reason to believe the records or other information sought are relevant and material to an ongoing criminal investigation” or the investigation of a missing child, senior adult, or incapacitated person.  Law enforcement officers are able to receive all records from service providers with a court order except the content of messages or real-time location information.  The one exception involves cases of child pornography investigations where companies are required to provide real-time tracking, but not content of messages, in addition to other information when required by a court order.  In order to obtain message content from service providers, officers must obtain a search warrant.[ii]

Officers are required to obtain search warrants for real-time tracking of devices in all routine cases except child pornography investigations, where a court order is required.  Additionally, a search warrant is not required when the phone is used to call for help or if consent is obtained.  If law enforcement officers rely upon consent to access real-time tracking information the device must  be “in his possession; (ii) the owner or user knows or believes that the device is in the possession of an employee or agent of the owner or user with the owner's or user's consent; or (iii) the owner or user knows or believes that the device has been taken by a third party without the consent of the owner or user”.ⁱⁱ  Furthermore, a search warrant is not required in the following circumstances:

“with the informed, affirmative consent of the legal guardian or next of kin of the owner or user, if reasonably available, if the owner or user is reasonably believed to be deceased, is reported missing, or is unable to be contacted; or if the investigative or law-enforcement officer reasonably believes that an emergency involving the immediate danger to a person requires the disclosure, without delay, of real-time location data concerning a specific person and that a warrant cannot be obtained in time to prevent the identified danger, and the possessor of the real-time location data believes, in good faith, that an emergency involving danger to a person requires disclosure without delay”.[2]

The exceptions to the search warrant requirement for real-time tracking information clearly follow the Supreme Court’s recent decision by requiring consent or exigent circumstances to obtain the information.

Whenever real-time tracking information is obtained from a service provider based on exigent circumstances and without a warrant, the officer is required to file a written statement within three days with the court which details specific facts indicating why an emergency existed and how the real-time tracking information was related to the emergency.  Search warrants for real-time tracking must be for a reasonable amount of time and no longer than 30 days, but an additional 30 day extension can be granted when the officer shows “good cause”. ⁱⁱ

The Supreme Court’s decision in Riley v. California slightly alters how law enforcement officers handle searches of cellular phones, but in no way prohibits officers from obtaining evidence for use in criminal prosecutions if proper procedures are used.  Additionally, records from various types of communication service providers are available to law enforcement officers with minimal effort.  Several sample court orders are included for reference (click here for a cellular service court order and here for a computing service court order).

 

 [1] Riley v. California, slip opinion (2014).

 [2] Obtaining records concerning electronic communication service or remote computing service, § 19.2-70.3 of the Code of Virginia (2014)

 

Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.