With all of the decisions being handed down by the court system these days, from the lowest local venues to the highest federal bench, it can sometimes be difficult to remember just what your rights are. Especially with regard to smart phone and cell phone use. Can the police in Florida search your cell phone or smart phone without a warrant? What should you do if they tell you that they can?

A court decision handed down in June 2014, for a case which originated in southern Florida, requires law enforcement to take more legal steps in order to get their hands on your phone records.

The 11th Circuit Court of Appeals ruled on a 2012 case that involved a first-time offender who was given a 162-year sentence for having committed several robberies. The conviction came solely on the strength of more than 11,000 cell-phone location records.

However, police obtained those records without getting a warrant. All that was needed was a request before a magistrate for what was known as a “D-order” for documentation.

The difference? With D-orders, all police need to show is that the material being sought is “relevant and material” to their investigation. With search warrants, police need to demonstrate probable cause.

The 11th Circuit ruled that a warrant, signed by a judge, would need to be obtained in order to get a person’s cell phone records, a ruling which, to many, reaffirmed Americans’ basic Fourth Amendment rights regarding search and seizure.

Indeed, the ACLU attorney who argued the appeal, Nathan Freed Wessler, said in a statement, “The court’s opinion is a resounding defense of the Fourth Amendment’s continuing vitality in the digital age. This opinion puts police on notice that when they want to enlist people’s cell phones as tracking devices, they must get a warrant from a judge based on probable cause. The court soundly repudiates the government’s argument that by merely using a cell phone, people somehow surrender their privacy rights.”

The ruling would appear to also prohibit police from using a machine known as a Stingray to find suspected criminals by tracking their cell phone signals. It is not exactly common knowledge that departments are even using such technology.

Have a question about the privacy of your cell phone records? Call one of our experts at Gilbert & Smallman to see how we may be able to help.