As the police become more creative about getting and using evidence from cell phones, the Courts are going to be confronted with new issues to decide. For most of those issues, the Courts are asked to decide how rights established over 200 years ago apply in contexts that the framers of the Constitution and Bill of Rights could not have even imagined.

An example is a recent case out of Florida. The police had the cell phone of a man who had been shot in a police shooting. They wanted access to the phone, so they went to the funeral home and got access to his body, and then used his finger to open the phone.

Putting the question of why the funeral home would allow that aside, the first reaction most people have is that this can’t be legal. Unfortunately, although it is certainly creepy, it may be legal.

The law is clear that in order to access the contents of a phone, the police need either your consent or a search warrant. The basis for that is your right to privacy in the contents of your phone. Obviously, you can’t consent once you're dead, but at the same time, there is some authority that establishes you also no longer have a right to privacy – you’re dead. We are in a digital age. Every phone has a camera that takes video and digital cameras are very small. Recently, a court in Pennsylvania said it was illegal to turn on someone’s cell phone to get the phone number. Another court in Massachusetts said police could not look through a person’s camera after he was arrested without a search warrant.

So, does that mean this conduct is acceptable? That will be the question for a court if either a civil suit is filed against the police, or the evidence from the phone is offered in court. Since this was a police shooting, there may be a civil suit filed by the family against the police department, or criminal charges could be filed against the officer if there was no justification for the shooting.

I can’t speak to the civil proceedings, but I can talk about the criminal ones. The same issues would apply in cases where police obtained evidence in this manner and used it to support a case against someone for evidence found on the phone – for example, there might be a picture of someone holding dope, illegal photos sent by someone, or text messages which suggest criminal conduct.

The Fourth Amendment protects you from “unreasonable” searches and seizures. What is unreasonable can be based on the way the search was done. However, the conduct has to be extreme, and few Courts have found something sufficiently offensive to be considered unreasonable. An exception is a Supreme Court case where they held a forced surgery to remove a bullet so it could be used for evidence, which was unreasonable. While the situation here doesn’t involve the infliction of pain or the invasion of the body, it does violate the right to dignity and is something that almost all people would consider morally offensive.

Before you even get to the unreasonableness question though, you have to establish “standing.” Basically, that means you must establish that your rights have been violated; you can’t complain about the violation of someone else’s rights. For example, they illegally search your friend’s house and find something that links you to a crime. You can’t complain about the illegal search of his house. There’s a narrow exception to this, but you must have some interest that has been violated. A common example is a traffic stop, where you are a passenger. You can complain about the stop, since you have some interest in being free from illegal stops, even if you weren’t the one driving.

Standing will be an issue in these cases since you are complaining about the violation of someone’s else rights. You might argue there is an exception if there was evidence on the phone that you had no part of providing. Maybe the dead guy took a picture without your permission or sent you an unsolicited text. That’s going to be fairly rare though, since any time you put something “out there”, like a text or photo, you have voluntarily given up your privacy interest. So, if you sent them a picture with you holding a big bag of dope, you are probably screwed.

To understand how this might play out in a civil case, I asked Florida civil rights attorney, Guy DiMartino. Here's what Guy had to say.

In some instances police shooting cases, the family or personal representative of the deceased have the ability to bring civil rights or potentially state law wrongful death claims. These cases depend heavily on the facts. When looking a civil rights claim, the question becomes – was the use of deadly force reasonable? The claim is brought under the Fourth Amendment through Section 1983. Police shooting cases are very difficult to pursue because law enforcement officers are protected by a doctrine called qualified immunity, so the facts have to be exceptionally horrible to get the case to a jury.

On the state law side of the coin, families of folks killed by police may be able to bring claims for negligent hiring, retention, and/or supervision. Again, these claims are very fact sensitive.

Is there a civil rights violation for using a dead person’s finger to access a cell phone. When evaluating this type of claim, we have to look Fourth Amendment criminal search and seizure claims. On the criminal side, courts have treated finger prints different than compelling a person to do an act. For instance, courts will probably treat grabbing a deceased finger to open a phone different than grabbing a live person’s finger and bringing it to the phone to access data.

There is probably no Section 1983 claim available to the family of the decedent for attempting or using his finger print to access a phone.  

So, there you have it. My guess is that this is an issue that’s not going to be resolved through the courts. If any protection is going to be provided, it will most likely be through the legislature.

By the way, if you want more information about Guy DiMartino, check out his bio on his website. In addition to being a civil rights and personal injury, he's also a chiropractor and pastor. There aren't many people capable of getting both medical and law degrees.

Walter Reaves
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Criminal Defense Attorney Walter Reaves has been practicing law for over 35 years.
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