The Fourth Amendment and Your Digital Privacy Rights

If law enforcement suspects that you committed a crime, they may want to search your cell phone location records for evidence. The Fourth Amendment of the Constitution of the United States of America protects you from unreasonable searches and seizures, but until recently, your digital privacy was subject to law enforcement scrutiny without a warrant.

If you have been charged with a crime and are concerned about your digital privacy, contact the criminal defense attorneys at S.L. England, PLLC. We understand that your digital privacy is important and will fight to protect it while building a strong defense for you.


Previously, the Supreme Court’s stance was that the Fourth Amendment only applies when people have a reasonable expectation of privacy, and some digital information does not require a warrant to access.

In 1979, the Supreme Court considered the case of Smith v. Maryland. Patricia McDonough was robbed and gave law enforcement a description of the suspect and his Monte Carlo. Following the robbery, she received threatening phone calls and observed the same Monte Carlo driving past her house. Law enforcement located the car and found the owner’s name, Michael Lee Smith, by running the license plate number. They then contacted the phone company and had a pen register (a device that records dialed outgoing phone numbers) attached to Smith’s phone without a warrant. The pen register revealed that he called McDonough’s phone number. He was arrested and McDonough identified him as the man who committed the robbery.

The Supreme Court ruled that in this case, Smith had no expectation of privacy because the phone company used the pen register during its normal course of business, and customers are aware of this practice. The Fourth Amendment does not apply to information that the Defendant voluntarily gives to a third party, and outgoing dialed does telephone numbers are regularly provided to the phone company.


As digital technology has evolved, so has people’s expectation of privacy. In 2018, the Supreme Court considered if accessing cell phone records without a warrant, including the cell phone user’s movement and location, violates the user’s Fourth Amendment rights.

The Court acknowledged that existing privacy precedents do not fit with the expectation of privacy in the digital age, and tracking a person’s movements through cell-site records is more intrusive than cell phone users anticipate. Third-party doctrine does not apply in these cases because cell phone users may be vaguely aware that their cell phone companies keep records regarding their location, but do not voluntarily provide location information to the company. Based on this ruling, law enforcement agencies will generally need a warrant to access cell-site location records.


If you have been charged with a crime in Washington, D.C. or Virginia, you need an aggressive criminal defense attorney from S.L. England, PLLC, to protect your Fourth Amendment rights. You have a reasonable expectation of digital privacy, and our attorneys will ensure that it is protected. Call us today at (202) 572-1020 or contact us online.

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