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Police Seizure of Text Messages Nothing to LOL About: Court

By Deanne Katz, Esq. on September 10, 2012 | Last updated on March 21, 2019

The idea of police seizing your text messages may seem funny if all you have is some attempts to make happy hour plans and a cute note from your significant other. But it's a much bigger deal if that seizure results in an arrest.

States are still divided on whether police can seize a cell phone without a warrant and at least one more has thrown its hat into the ring.

On Wednesday a Rhode Island state court threw out the majority of the evidence in a case against Michael Patino because it stemmed from a warrantless search of his phone. That's good news for Patino but it doesn't necessarily clarify the law on warrantless cell phone seizure.

The troubles began at Patino's girlfriend's house when her six-year-old son went into cardiac arrest. Police responded to the emergency call and while there one officer picked up Patino's cell phone.

On it he saw several incriminating text messages and based on that he arrested Patino.

From those messages police were able to get warrants for additional evidence and build a case for murder against Patino. But the judge ruled that the text messages are protected by the Fourth Amendment against warrantless seizure.

Now that almost all of the evidence has been thrown out, it's unclear whether the state still has a case. In the meantime, they still might appeal the ruling.

States are split on how to decide this issue. The majority of states haven't established a clear standard yet but a few have. California, Georgia, and Florida all allow warrantless cell phone searches pursuant to an arrest. Ohio does not allow warrantless cell phone searches in any case.

It's unclear how far the Rhode Island case goes since it doesn't involve search incident to arrest. Patino was only arrested after the text messages were discovered, reports Ars Technica.

Where this case leaves police search and seizure is still unclear and guidance from the Supreme Court isn't expected anytime soon. For now, it's not a bad idea to advise your clients to keep their text messages safe by locking their phones. Or just deleting the messages.

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