Larry P. McDougal
Larry P. McDougal - Attorney at Law
Richmond, Texas
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Mute that chatty witness in your pocket

In a previous post, we discussed the best course of action to follow when interacting with police during a traffic stop or an arrest. In these highly stressful situations, people may feel compelled to provide a lengthy defense in support of their innocence. Such a verbal outburst can be counterproductive, as those utterances can be used as evidence in the future, taken out of context and twisted to suit the purposes of those filing charges.

In contrast to the talkative, those who eventually defeat charges filed against them do so by remaining mute when they are initially questioned. These folks don't provide information that can be used in the future. Keeping quiet is protected by Miranda rights and is a smart strategy to follow. As we mentioned in our post, "nothing you say will convince the officer not to arrest you."

In addition to maintaining your silence being questioned, you have another witness of sorts that you'll need to control when you are interacting with law enforcement. This witness has all of your contact information, can share correspondence you've maintained with others and can retrieve photos you've taken. Should you give police access to this witness, you will provide a mother lode of evidence that probably won't be used to defend you against charges. This star witness is your smartphone.

Previous to 2014, police officers could seize and search an individual's cellphone without a warrant, availing themselves to reams of information. Acknowledging the significance of the data stored on cellphones, the U.S. Supreme Court Justices issued a ruling requiring warrants be obtained before law enforcement could gain access to a smartphone.

According to the ruling, cellphone owners have an expectation of privacy when they send texts, take pictures or conduct internet searches. This ruling provides the same protections that are extended to a house. As Americans typically ask for a warrant before allowing law enforcement to enter a home, more should be requiring the same document previous to providing a cellphone. In 2015, Texas legislators echoed the sentiment of the ruling in their passage of HB 1396.

Just as it is important to remain silent when being questioned by the police, it is crucial to deny officers permission to access your phone. Those who willingly hand over a phone while talking with police do so at their peril; any information discovered can be used as evidence. Should you consent to having your phone searched and then change your mind, the officer can retain possession of your cellular device.

Chances are high that Texas law enforcement officials know they need to have a warrant to search your phone. Any officers asking for permission do so to trip up individuals ignorant of the law. Just as you are protected from self-incrimination, you have the right to secure the silence of the "witness" in your pocket. Should you be questioned by police, play it smart by muting your mouth and your phone.

Individuals who believe that their cellphones were illegally accessed by law enforcement are advised to seek the counsel of a knowledgeable attorney.

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