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Court orders required for text message searches - The Red and Black : News

Court orders required for text message searches

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Posted: Thursday, December 6, 2012 7:00 am | Updated: 12:27 pm, Mon Apr 1, 2013.

Students sending text messages regarding illegal activities may want to be careful.

In the state of Georgia, text messages are admissible as evidence in court cases. If authorities have probable cause and a court order, an individual’s messages can be used to bring charges against him or her.

“To search somebody else’s phone records, you’re going to need either a search warrant or a subpoena or something like that,” Athens attorney Mo Wiltshire said, “unless it’s a government phone or otherwise subject to an open records request.”

University Police Chief Jimmy Williamson said University Police follow the law and require warrants for searches. Williamson said the department is not targeting or cracking down on text messages and only searches phone messages when it is crucial.

“There’s nothing where we could just go get stuff. I mean, the Constitution doesn’t allow that,” Williamson said. “We have to clearly, clearly define to the courts why we thought this evidence would be destroyed if we hadn’t obtained it without a warrant.”

Williamson said he never knows where evidence is going to be, and phone searches are not procedural and depend on the context of the case. Williamson has studied search and seizure law, and there is a reasonable expectation of privacy associated with that law.

“Search and seizure law is very complicated,” Williamson said. “I mean, we take lots of courses in it."

Williamson continued to say "search and seizure law changes every year, so it's not just this simple ‘I can do this. I can do that.’ If there’s an expectation of privacy that normal people couldn’t get that information without performing some illegal act, then the police have to get a search warrant.”

In 2010, The Red & Black reported text message evidence led to felony charges for a freshman student. In November, a student was expelled after text message evidence was used in a case pertaining to a strong-arm rape accusation, as reported by The Red & Black.

Text messages are generally used as evidence to prove there was contact — whether desired or not — between two individuals, Wiltshire said. He also said texts can be used in cases involving stalking.

“Let’s say there was an allegation of someone that was stalking somebody, and the victim complained that they had been getting text messages from the alleged stalker,” Wiltshire said. “Well in that case, you certainly might want to look at not only the victim's phone, but you’d want to follow up and check with the phone company and find out if there was a phone that the alleged stalker used to see what  records were sent from their phone.”

Danielle Dankner, a third-year criminal justice major, said a friend recently had her phone searched as part of an investigation. Dankner is unaware if the messages will be used in court because it is still early in the process.

“There were threats to another girl from it, so my friend claimed someone stole her phone and texted it,” Dankner said. “I don’t know if it’s even got to that point yet.”

Texts can also be used as evidence toward drug claims.

“In drug cases, if someone’s arrested for possessing a certain quantity of narcotics, they’re arrested because they have possession with intent [to distribute] or they’re in the act of selling or whatever, their cell phone gets ceased,” Wiltshire said. “A lot of times, law enforcement wants to see what text messages they have and then will try to get evidence from the phone — if there’s enough evidence to justify it.”

Though a person who used their phone for nefarious actions might hope to delete the evidence, Wiltshire said phone companies keep records on what messages are sent. He said, in fact, there are lobbyists in Washington attempting to require phone companies to keep messages for long after a crime is committed.

“There’s a push in Congress right now, with various heads of different law enforcement agencies, including chiefs of police, that want Congress to require that electronic — cell phone companies in particular — to keep text messages for longer periods of time, up to two years,” Wiltshire said. “Right now there is not any special requirement that text messages be maintained for that long.”

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