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Defenses When Your Cell Phone or Computer is Seized

Posted by Dmitry Gorin | Mar 27, 2024

In the digital age, cell phones, and computers are not just personal devices but reservoirs of personal and sensitive information. It should be no surprise that digital forensic evidence has become a cornerstone of many federal investigations. 

It involves collecting and analyzing data from electronic devices such as cell phones and computers, which often contain vast amounts of information about a person's activities, making them a rich source of potential evidence, especially in child pornography cases.

Generally, law enforcement may not search your cell phone or computer without a warrant specifying the device and the evidence being searched for. 

Best Defenses When Your Cell Phone or Computer is Seized
If federal agents seized your cell phone or computer, there are some best defense strategies.

Even if police seize your mobile phone or personal computer when they arrest you, they cannot search the data until they get a warrant first. Police can lawfully search your cell phone and computer without a warrant if you consent to the search or are on probation or parole.

The United States Supreme Court has ruled that the police must have a valid search warrant based on probable cause before performing a cell phone search. This decision is consistent with the Fourth Amendment of the U.S. Constitution, which protects people from unreasonable searches and seizures by the government.

Law enforcement agencies routinely seize cell phones and computers to gather evidence; however, the seizure of these devices and subsequent data extraction can have profound implications for those under investigation. It can lead to loss of privacy, damage to reputation, and potentially even criminal charges. 

When faced with a federal criminal investigation, the seizure of these devices can feel like a violation of your personal life, leaving you vulnerable and exposed. 

Even so, you still have some guaranteed rights in this situation. A skilled federal criminal defense attorney can take tangible steps to protect your privacy and personal information and ensure that any evidence gleaned from these devices is only used within the confines of the law. Let's discuss strategies a defense attorney can employ to protect your rights and interests when your digital devices are seized.

Challenging the Legality of the Seizure

The Fourth Amendment of the U.S. Constitution protects individuals against unreasonable searches and seizures, a principle that extends to digital devices. 

The Fourth Amendment says, “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.”

A defense attorney can scrutinize the circumstances surrounding the seizure of a cell phone or computer and potentially challenge its legality on several fronts. These include:

  • Lack of a Warrant: The attorney could argue that the search was unconstitutional if law enforcement seized the device without a warrant.
  • Invalid Warrant: A warrant must be specific and based on probable cause. An attorney might contest the validity of a warrant if it's overly broad or based on unreliable information.
  • Exceeding the Scope of the Warrant: Even with a warrant, there are limits to what can be searched for and seized. If law enforcement exceeded these bounds, the evidence might be challenged.

Successfully arguing any of these points could lead to the exclusion of the seized evidence from the case—and if much of the case hinges on this evidence, it could even result in a dismissal of the charges.

Negotiating for Access and Preservation of Evidence

The law allows you to examine the evidence against you to prepare your defense. Thus, after a device is seized, it's vital to ensure that all evidence is preserved and that the defense has access to it for examination as part of the discovery process. 

Defense attorneys can negotiate with prosecutors to set terms for this access, sometimes utilizing forensic experts to analyze the digital evidence. This process is crucial for preparing a defense and potentially uncovering evidence that could exonerate you.

Suppressing Incriminating Evidence

If evidence from the seized device could potentially harm the defense, an attorney might file a motion to suppress that evidence. 

A motion to suppress is a request made by a criminal defendant before a criminal trial asking the judge to exclude specific evidence from the trial. The proposed basis for the exclusion must be in the U.S. Constitution, a state constitution, or some specific statute that permits such evidence to be excluded.

A motion to exclude evidence based on rules of evidence before the trial is more commonly called a motion in limine. Rule 41(h) of the Federal Rules of Criminal Procedure governs motions to suppress in federal courts.

Thus, a good attorney will monitor the situation carefully and examine the prosecution's handling of the devices and data. Your attorney might file a motion to suppress evidence under one or more of the following grounds:

  • Violation of the Right to Privacy: If the evidence was obtained in a manner that infringed upon your reasonable expectation of privacy, it might be suppressed.
  • Chain of Custody Issues: Evidence may be suppressed if there were issues with how it was handled, stored, or transferred, thereby potentially compromising its integrity.
  • Violation of the Right to Counsel: If the evidence was obtained after you requested it but were denied the opportunity to consult with legal counsel, that evidence could be subject to suppression.
  • Faulty Forensic Procedures: It might be suppressed if forensic procedures were not correctly followed during the collection or analysis of evidence.

Utilizing Digital Evidence to Bolster Your Defense

Interestingly, digital evidence from your devices may also work in your favor. Sometimes, data from seized devices can corroborate alibis, challenge the prosecution's timeline, or otherwise support the defense's narrative. 

A strategic attorney will carefully review all digital evidence to identify any information that could benefit your case. They will also ensure that all evidence is preserved and that the prosecution does not conveniently conceal exculpatory information obtained from your device(s).

For more information, contact our federal criminal defense law firm, Eisner Gorin LLP, which has offices in Los Angeles, CA.

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About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

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