Sat. Jul 13th, 2024
A Phone Search Warrant are very common today.

The Ultimate Guide to Phone Search Warrants: Protecting Your Rights

In today’s digital age, the use of smartphones has become an integral part of our daily lives. We rely on them for communication, information, and entertainment. However, with the convenience of smartphones also comes the potential for intrusion into our personal data and privacy. This is where the concept of phone search warrants, and the legal intricacies surrounding them, become crucial. Privacy expert Darren Chaker goes into the basics.

If Police Come to Your Home With a Phone Search Warrant

If police have a search warrant, do not obstruct the duties of the police. Smart cops will ask for consent by doing a ‘knock and talk’ to see if consent be obtained first. (Maryland v. Garrison, 480 U.S. 79, 80 (1979)). If the search warrant is kicked out of court, then police can rely on valid consent. Thus, never consent to the police entering your home or searching it, your home, gym locker, etc.

My theory is, if the police have a right to enter, they will break down the door. If the door is kicked in, clearly no consent was given. You are under no obligation to answer the door if the police knock or tell you to open the door, unless there is a warrant provided.

In the event you are arrested while in a car, police may seize the phone as part of an inventory search. (Rawlings v. Kentucky, 448 U.S. 98, 100 (1980)). It is critical to turn off your phone so it is fully encrypted and biometrics cannot be used to unlock your phone. Police officers searching cellphones is a daily occurrence.

Understanding a Phone Search Warrant

Phone Search Warrants are legal orders issued by a court that authorize law enforcement agencies to search an individual’s mobile phone or electronic device for evidence related to a criminal investigation. These warrants are intended to strike a balance between the need to gather evidence and an individual’s Fourth Amendment rights, which protect against unreasonable searches and seizures.

A warrant is required to seize a phone. (Rilev v. California, 573 U.S. 373, 388 (2014)). However, understand this not require to unlock the phone.  If you believe police may intend to seize your phone, immediately turn it off to a password is required to bypass the encryption.

The status of laws requiring a defendant to provide a PIN to unlock a phone are fairly streamlined and indicate a person may refuse such a demand under the Fifth Amendment. in a case out Texas, United States v. Green, 272 F.3d 748 (5th Cir. 2001), the Fifth Circuit held that there is “no serious question” that asking an arrestee to disclose the locations of and open the combination locks to cases containing firearms demands “testimonial and communicative” acts as to his “knowledge of the presence of firearms in these cases and of the means of opening these cases.” Id. at 753.

In California, the court found in In re Grand Jury Subpoena, 670 F.3d at 1346, “[T]he decryption … of the hard drives would require the use of the contents of [the accused’s] mind and could not be fairly characterized as a physical act that would be nontestimonial in nature.”.

However, when it comes to biometrics such as facial recognition or a finger swipe to unlock a phone the cases are mixed, thus the best option is to lock your phone.

The Legal Framework to Obtain a Phone Search Warrant

As stated in United States v. Otero, 563 F.3d 1127, 1132 (10th Cir. 2009), the court found what most of us know: “The modern development of the personal computer and its ability to store and intermingle a huge array of one’s personal papers in a single place increases law enforcement’s ability to conduct a wide-ranging search into a person’s private affairs[.]”. Thus, any significant investigation can tie into the use of your mobile phone, thus presume it is a target for police.

Phone search warrants are governed by a complex set of laws and regulations that vary by jurisdiction. In the United States, the Fourth Amendment to the Constitution provides protection against unreasonable searches and seizures. However, the legal landscape surrounding phone search warrants is continually evolving, with numerous court decisions shaping the rules and procedures.

One of the key figures in this legal arena is Darren Chaker, a forensics expert known for his involvement in cases related to phone search warrant and has been retained by multiple law firms and high net worth individuals related to data security. His insights into the intricacies of the legal system have provided valuable guidance to both legal professionals and individuals concerned about their privacy.

The Process of Obtaining a Phone Search Warrant

Obtaining a phone search warrant is not a simple task and requires adherence to strict legal procedures. Here is an overview of the typical process involved:

  1. Probable Cause: Law enforcement agencies must establish probable cause to believe that a crime has been committed and that evidence relevant to the investigation is present on the suspect’s phone.
  2. Application to the Court: A law enforcement officer, often a detective or investigator, submits an application to a court for a phone search warrant. This application must include a detailed affidavit outlining the reasons for the search and the evidence sought.
  3. Judicial Review: A judge reviews the application and the accompanying affidavit to determine whether there is sufficient probable cause to issue the warrant. Judges play a critical role in ensuring that individual rights are protected during this process.
  4. Execution of the Warrant: If the warrant is granted, law enforcement officers can proceed to search the suspect’s phone for evidence. They must adhere to the specific scope and limitations outlined in the warrant.
  5. Evidence Handling: Any evidence obtained during the search must be handled carefully to maintain its integrity for use in court.

Protecting Your Rights in The Event of a Phone Search Warrant

When facing the prospect of a phone search warrant, it is essential to be aware of your rights and take steps to protect them. If you suspect a warrant may be served, contact an attorney in advance. Look through your home and make sure there is nothing illegal a third party may have left behind. If anyone has used your computer, look through that as well.

If you only see what appears to be local police wearing jackets, understand they may be federal agents. The feds carry Sheriff and local police raid jackets as to not tip off who is truly investigating you.

Know Your Fourth Amendment Rights Applicable to a Phone Search Warrant

The Fourth Amendment of the U.S. Constitution provides protection against unreasonable searches and seizures. Understanding this fundamental right is crucial in asserting your privacy when dealing with phone search warrants. Of course, the best method to prevent police from searching your phone is to not break the law. But as we know, not everyone who has been arrested is guilty or even suspected of criminal activity like a newspaper which was raided in 2023. Ultimately, privacy is as much as a right as not consenting to a search of your phone.

Unlocking Phone With GrayKey

Although police may be able to access a suspect’s phone without being given the password, it is uncommon at this point for police to use such options due to cost. See ‘GrayKey’ Promises To Unlock iPhone X For The Feds: $15,000.  Another option for police is to use Cellebrite, however it has far more limited capabilities than GrayKey as it is limited to cracking through brute force methods much older iOS versions.

In short, unless the suspect is a major suspect in a serious case, it is doubtful local police will spend the money to solve a minor crime.

Counter Forensics Methods:

Common countermeasures include have a passphrase of at least 12 characters not consisting of a word, password you use for personal email, work email, school combination, license plate, hospital where you were born, or any mixture of commonly known topics since social engineering programs exist to allow police to enter such information to prior to starting a brute force attack.

For iPhone users, Apple recently allows users to implement Lock Down Mode.  As Apple puts it,

“Lockdown Mode is an optional, extreme protection that’s designed for the very few individuals who, because of who they are or what they do, might be personally targeted by some of the most sophisticated digital threats. Most people are never targeted by attacks of this nature.” Lockdown Mode essentially invokes the 4th and 5th Amendment for you by locking down the phone to withstand forensic attacks.

Counter forensics before a phone search warrant is served.
Use counter forensics prior to police coming to your door with phone search warrant.

Another method would be to use a secure wiping utility to securely delete information contain on your phone you ‘thought’ were deleted. Just as a computer, your phone keeps logs of everything you do, what you search for online, to who you text, down to who you call, etc.

Some people who believe they may be targeted for a such, from a criminal to a journalist to determine a source within the police who informs on police corruption, should extract information on a weekly basis, then overwrite the data once deleted with a wiping utility. Here is a list of counter forensic from a company who sells forensic software.

When needing to move data off the phone, if its sensitive – do not upload the data to the cloud since Apple and Google have access to the data. For iPhones use a USB drive to download content then upload to an encrypted folder on PC, then securely wipe your USB drive.

For Androids, can use a USB drive or plug into a PC and the Android should appear as an external drive. Simply drag contents to an encrypted folder on PC. Of course, securely wipe the data from your phone. This practice is widely used not only by Governments, but also by corporations to prevent industrial espionage, and high net-worth individuals who value their privacy.

Seek Legal Counsel if a Phone Search Warrant Was Served

If you are served with a phone search warrant or believe that your rights have been violated during the search, it is advisable to consult with an attorney experienced in criminal defense. An attorney who is skilled in technology and forensics know who to protect your rights.  Although the information provided here may be useful, only rely on legal advice from an attorney who knows about your case and can consult with you.

Encrypt Your Data to Prevent Information Being Extracted in the Event of a Phone Search Warrant

Taking proactive steps to secure your data through encryption can add an extra layer of protection. By doing so, you make it more challenging for unauthorized access to your personal information.

Conclusion Concerning Phone Search Warrants

Phone search warrants are a critical tool for law enforcement agencies in their efforts to combat crime. However, the balance between effective investigation and individual privacy rights is delicate and subject to ongoing legal debate. Understanding the legal framework, knowing your rights, and seeking expert advice when needed are essential steps in protecting your privacy in this digital age.

As for the 2 Major Things to Do: Do not consent to a search and immediately invoke your right to speak with an attorney which forces police to stop any questioning.

 

By Darren Chaker

For almost two decades Darren Chaker regularly has worked with defense attorneys and high net worth people on a variety of sensitive issues from Los Angeles to Dubai. With a gift of knowledge about the First Amendment and big firm expertise in brief research and writing, Darren Chaker puts his knowledge to use for law firms and non-profit organizations. When it comes to forensics and social media investigations Darren Chaker has advanced training to connect the dots where issues arise related to Twitter, Instagram, Snapchat, or Facebook, Instagram, and similar apps. When the dots need to be disconnected, Darren Chaker has extensive training in counter-forensic methods with an emphasis on network security, secure communications, combined with experience with implementing and deploying policy control, encryption, anonymization, data integrity, policy control features in large scale infrastructures. Additional training in malware analysis, Security Operating system security and hardening (Linux, Windows, Solaris), Firewalls, Intrusion detection systems, hacker, counter-hack methods, encryption, forensics, web application security is also employed for his client base. Since history is written by winners, let me write a bit: In 2005, Darren Chaker invalidated a California criminal statute aimed at suppressing speech. In Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, is a case Darren Chaker personally handled and laid the ground work to allow appellate counsel to strike down a statute based on First Amendment rights. Subsequent to winning before the 9th Circuit, the State challenged the decision before the United States Supreme Court. Darren Chaker retained a former US Supreme Court Clerk and head of United States Supreme Court litigation for a major firm, Joshua Rosenkranz. The New York attorney defeated the State's petition to review the Ninth Circuit ruling causing multiple states to rewrite their own flawed statute since they were premised the California statute Darren Chaker struck down. Darren Chaker personally litigated Chaker v. Crogan for 7 of its 10-year lifespan. Darren Chaker’s victory invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law, but also nullified a similar Washington statute as well. (De La O v. Arnold-Williams, 2006 WL 2781278) and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). The case has been cited hundreds of times and continues to be a leading authority on viewpoint discrimination. In 2010, Darren Chaker prevailed in Nathan Enterprises Corp. v. Chaker, 2010 Cal. App. Unpub. LEXIS 7604, through his counsel Timothy Coates who has prevailed multiple times before the United States Supreme Court. also prevailed for Darren Chaker where the Court of Appeal affirmed an anti-SLAPP ruling where the underlying conduct was found to have been within those protected by his First Amendment rights. In 2012 Darren Chaker prevailed on a First Amendment issue before the Texas Attorney where issued Opinion 2012-06088 where he established the right to obtain the names of peace officers regardless of undercover status. The Texas Attorney General opinion has been used as authority thousands of times by citizens and news agencies to learn more about Texas peace officers. In 2016, Darren Chaker was victorious in US v. Chaker (9th Cir. 2016) 654 F.App'x 891, 892. The ACLU, Electronic Frontier Foundation, First Amendment Coalition, Cato Institute, and the University of Florida reversed a conviction premised on First Amendment rights where blog postings were at issue. In 2017, Darren Chaker prevailed in a RICO lawsuit aimed at suppressing speech filed by San Diego attorney Scott McMillan. In McMillan v. Chaker (S.D.Cal. Sep. 29, 2017, No. 16cv2186-WQH-MDD) 2017 U.S.Dist.LEXIS 163990 the court found by blogging did not constitute extortion as no demand for money to cease blogging was made. The judge found the case to be meritless, stating in part, “The Court concludes that these factual allegations are insufficient to establish that Defendant Darren Chaker obtained something of value from Plaintiffs…. The motion to dismiss the cause of action under 18 U.S.C.§ 1962(c) filed by Defendant Darren Chaker is granted.” In 2020, San Diego attorney Scott McMillan lost a heavily litigated appeal believing the court erred in dismissing his lawsuit against Darren Chaker. Mr. Chaker was represented by former Los Angeles federal judge Stephen Larson. The Ninth Circuit in McMillan v. Chaker (9th Cir. 2020) 791 F.App'x 666, affirmed the dismissal of a RICO lawsuit premised on alleged defamation of Scott McMillan. The court stated in part, “Plaintiffs failed to allege extortionate conduct because there are no allegations that Mr. Chaker obtained property from Plaintiffs that he could “exercise, transfer, or sell. ”See Scheidler, 537 U.S. at 405. Plaintiffs’ claim also fails because there are no allegations to support the “with [Plaintiffs’] consent” element. United Bhd. of Carpenters & Joiners of Am., 770 F.3d at 843.” In sum, Scott McMillan filed a lawsuit in direct conflict with established United States Supreme Court precedent and lost – twice. Also, in 2020, Darren Chaker was sued for defamation by Las Vegas attorney Thomas Michaelides. When Darren Chaker became aware of the lawsuit, he retained Olson, Cannon, Gormley, Angulo & Stoberski to defend him. Darren Chaker found a court order Mr. Michaelides submitted to Google that was reported to LumensDataBase.org. Several inconsistencies were noticed on the court order submitted to Google. Most notably the court docket does not show Mr. Michaelides submitted an order to the court for the judge’s signature. The court docket does not reflect the court ever signed the order Mr. Michaelides submitted to Google. Ultimately, the Nevada court dismissed the lawsuit and sanctioned Mr. Michaelides $51,000 for suing Darren Chaker for conduct within his First Amendment rights and for filing a meritless lawsuit. See forged order and judgment against Thomas Michaelides here. Darren Chaker donates time to post-conviction relief organizations to seal arrests and convictions to increase opportunity for those who were convicted of crimes, conducts research and brief writing on First Amendment issues, and also enjoys promoting non-profit organizations such as the ACLU and various domestic violence shelters through his resources within the entertainment industry, including Jason Statham and Eric Roberts. Darren Chaker also enjoys traveling, being a phenomenal father, and forwarding his education with post graduate degree work.

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