Legal Question in Criminal Law in Wisconsin

can a police officer search thew your cell phone without a warrant to build a case on you

Asked on 10/25/09, 10:56 pm

1 Answer from Attorneys

JAY Nixon nixon law offices

Yes, mere lists of who you have spoken with on any phone (known as the "Pen Log") are not considered to be private information since the numbers called are deemed to be no different than the license plate number on a car on a public roadway; this information also travels over public airwaves or media and is easily obtainable to anyone trying to observe it. On the other hand, the content of the conversations is generally presumed to carry a "reasonable expectation of privacy," which is the criterion which normally requires an investigating officer to get a warrant. Studying the pen log is therefore a very common tactic for investigators building a case in order to obtain a wiretap warrant allowing them to intercept and record the actual conversations or to prove contact between members of drug dealing conspiracy. A bigger issue these days is whether or not cell phone tower data is also private, since it can also provide proof of your location within a certain group of cell tower's coverage area at any given time. Prosecutors argue that this too is little different than car tag numbers on a public roadway. However, the federal courts have yet to address this issue "head on," therefore the better practice at this moment in time is for officers to also get a warrant before using that data. My response in this public web forum is intended for public educational purposes only and is not intended to create an attorney client relationship between us.

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Answered on 10/31/09, 11:49 am

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