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Government claims phone and internet record searches are legal

Washington residents may be interested to know that government spokesmen argued that searching phone and internet records is entirely legal. According to the fourth amendment, however, all American citizens have rights against any unreasonable searches and seizures of their personal property, including these internet and phone records. Further, search warrants cannot be issued without probable cause. If the government does conduct and unreasonable search, the criminal defense may be able to argue that the search was illegal and the evidence from the search may be excluded.

Under the Patriot Act, phone and internet records may be searched to gather foreign intelligence information. According to the government, the fourth amendment does not apply in this case as the goal is not to seek evidence for crimes. The Foreign Intelligence Surveillance Act court sweeps millions of phone and internet records for information that are not related to individual crimes, and therefore do not require search warrants or individualized probable cause.

One retired attorney has argued that, unless interested parties continue to test the legality of these searches without probable cause, the government may not stop their searching. While the 'exclusionary rule" can be enacted by a judge, these constant disputes between the government and American citizens test the boundaries of the Fourth Amendment.

In Washington, individuals have the right to frivolous search warrants unless there is evidence and a probable cause. If it can be proven that there was no probable cause, the evidence against the defendant may be thrown out. An experienced criminal defense attorney may be able to help their clients have their case dismissed or have the charges mitigated by investigating the probable cause for the search warrant and arrest and by investigating all evidence obtained against their client.

Source: Oregon Live, "On phone and Internet records, the fox guards the henhouse: Guest opinion", Constance Emerson Crooker, June 12, 2013