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The Effect of Technology on the Fourth Amendment

  • Published: 2011-02-04 (Revised/Updated 2014-07-06) : Author: Law Offices of Howard A. Snader, LLC : Contact:
  • Synopsis: The Fourth Amendment has offered protection from unreasonable searches and seizures but those protections are being minimized by new laws and court decisions upholding invasive investigatory tactics by state and federal agencies.

The events of September 11th have permanently changed the way law enforcement fights crime. The Fourth Amendment has long offered protection from unreasonable searches and seizures, but slowly, those protections are being minimized by new laws and court decisions upholding invasive investigatory tactics by state and federal agencies.

Many rules have been passed to help prevent terrorism from spreading, to allow officials to detect those who would do harm to our country. While these rules have helped officials keep track of potential terrorists, it also allowed law enforcement agencies to aggressively monitor our daily lives.

Most large cities, Phoenix included, now have "fusion centers" in place which were created to lead the fight against terrorism. The centers consist of local law enforcement agencies working in concert with FBI Joint Terrorism Task Force personnel. Phoenix serves as the headquarters for the Arizona Counter Terrorism Information Center.

Concerned citizens may submit suspicious activity reports to these agencies for further investigation. The agencies then create files on those who were reported to have engaged in suspicious behavior as part of the Nationwide Suspicious Activity Reporting Initiative. However, it is unclear exactly what suspicious behavior means. The U.S. Department of Justice calls it "observed behavior reasonably indicative of pre-operational planning related to terrorism or other criminal activity."

With so much leeway, a person could report nearly anyone for anything that seems to be unusual. Officials in the fusion agency which received the report may forward it on to the FBI. If the file remains open, law enforcement can continue to investigate the individual. A national database has been created to store all of these reports, in an effort to spot any patterns or tendencies in specific regions.

In addition, law enforcement agencies have been equipped with new tools to help track down criminals. Police can use license-plate scanners to check for warrants based on the registered owner of the vehicle. Fingerprint scanners are used on drivers who have been stopped for traffic violations. Officials in Maricopa County use facial recognition software when taking mug shots.

This technology is also being used in the hunt against those who possess child pornography. Many of these images or videos are spread using file-sharing services, such as LimeWire or Kazaa, or torrent sites. Each image or video has specific file name that distinguishes it from other files - a type of digital fingerprint.

Law enforcement determines which file names are tied to known pictures or videos of child pornography. It then runs searches through the files of those connected to the file-sharing network to see if anyone has this information stored on his or her computer. Once police establish who has saved the images, they will make an arrest.

These investigations are happening at both the state and federal level. Continuing advancements in technology are making tracking systems more sophisticated, making it easier to find those who are in possession of child pornography. With the evidence readily accessible, prosecutors have little trouble making their case. Many accused simply plead guilty rather than contest the charges.

While technology is allowing for a more aggressive investigation of criminal activity, it is not the only way that law enforcement is being empowered. Closer to home, the California Supreme Court recently handed down a ruling that could have a major impact on those suspected of crimes. Gregory Diaz was arrested after buying drugs from an undercover informant. Police discovered the six ecstasy pills he allegedly purchased, as well as a small amount of marijuana. He denied purchasing the drugs from the informant.

The arresting detective then examined Diaz's cell phone. He noticed a text message which read "6480" which he determined meant "six pills for $80." Diaz then admitted to taking part in the sale. Diaz pleaded not guilty to the charges he was facing, stating that the detective did not have a warrant when he accessed the information contained on Diaz's phone.

The court held that police looking at the messages on a cell phone was a valid search incident to arrest, similar to looking into a pack of cigarettes found on a person. The cell phone was considered "personal property" and therefore subject to search without need for a warrant. Diaz's argument about the storage capacity of cell phones was unpersuasive, in part because the court did not want to consider creating a rule which would exempt some cell phones but not others. This decision, the court feels, makes it easier for law enforcement to apply during their investigations.

The dissent notes that police are in control of a cell phone after the arrest is made. Those suspected of crimes are unable to make any changes to the information contained on the phone, so there is no reason to conduct a warrant-less search. Evidence cannot be destroyed by the phone's owner since he or she is being kept separate from the phone.

Despite these arguments, police in California now have the ability to search the contents of cell phones without needing to obtain a warrant. Other law enforcement agencies may point to the California decision in an attempt to have similar laws put in place in their state.

If you have been accused of a crime, contact an experienced criminal defense attorney in your area to help you protect your rights. It may be possible that police exceeded their authority when they were conducting their investigations.

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