Under certain circumstances, law enforcement agencies may be able to listen in to your phone conversations and read your electronic communications. When it comes to this topic, the law can get quite complicated. In this blog post, we’ll take a brief look at some of the issues involved and how they may help you in your criminal defense.
Expectation of privacy
The Fourth Amendment of the U.S. Constitution and various laws protect us from “unreasonable” searches, but it’s not always clear what’s reasonable and what’s not. Generally speaking, the police can watch or listen to you when you’re in a public place, but they are less free to do so when you are in a place where you have a reasonable expectation of privacy. Your strongest expectation of privacy is in your home, and so, unless some exception applies, police need a warrant before they can search your home.
To get a warrant, police must present an affidavit to a judge, showing that they have probable cause to believe that a search of the home will, more likely than not, turn up evidence of a crime.
Wiretapping restrictions
The restrictions on police wiretapping are similar to the restrictions on searches. To be able to tap your phones, the police must get a wiretap order from a judge after demonstrating that they have probable cause to believe that tapping your phones will uncover evidence of a crime.
There are some further restrictions under laws such as the Wiretap Act of 1986. Generally speaking, the crime being investigated must be serious in nature, and the police must focus their attention on conversations relevant to their investigation. Police are not able to listen to certain kinds of legally privileged conversations, such as those between you and your lawyer.
Other ways of getting information
There have been many changes in communication since the Wiretap Act of 1986 was passed. And, just as the public has gained new ways to communicate, law enforcement agencies have gained new ways to investigate these communications.
For instance, police now often get warrants to access data shared between a cellphone user’s device and their cellular service provider. This information may include location data, numbers contacted and more.
The same principles apply to text messaging, emails and other electronic forms of communication.
Criminal defense
It isn’t always difficult for investigators to obtain a wiretap order or warrant. Still, police don’t always follow required procedures.
If you can show that the police exceeded their authority when listening in on your conversations or otherwise accessing your information, you may be able to keep the evidence against you out of court.