A Wisconsin prosecutor has posted an article that contains some criticism of a Wisconsin Supreme Court decision requiring a search warrant before the full contents of a call phone can be inspected.
The prosecutor takes issue with the court's rejection of the claim that exigent circumstances justified the warrantless search of the phone. He writes: "From a prosecutorial perspective this reasoning is flawed since the contents of high tech cell phones can be altered from remote locations and Internet Service Providers can inadvertently remove potential evidence through their normal procedures."
I don't know enough about the ability to recover deleted files from cell phone memories to assess this argument accurately. I also don't know what kind of electronic trail that could be accessible through law enforcement would be left by efforts to modify cell phones remotely. But I think going forward law enforcement will have to make a more substantial argument instead of relying on hypotheticals In order to sustain the exigent circumstances exception.
The Prosecutor is technologically misinformed. The contents of a cell phone, or other wireless communication device, cannot be altered if the police take reasonable precautions in their seizure. Reasonable in this case means (1) removing the battery, or (2) placing the device in a radio-opaque container (a/k/a metal box), or both.
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