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Do privacy rights die with the person owned them?

Under the Fourth Amendment of the U.S. Constitution, private citizens are supposed to be free from unreasonable searches and seizures by police. This essentially means that law enforcement must have a warrant signed by an impartial judge before initiating searches of areas that a person would have a reasonable expectation of privacy.

The question of privacy has become somewhat of a moving target in the age of digital information. The Supreme Court has ruled that password protected cell phones fall under the umbrella of privacy, and that police cannot always compel citizens to reveal a password in order further a search.

But what happens when police want to search a person’s cell phone after they pass away?

Police in Florida apparently attempted to circumvent the Fourth Amendment by bringing a deceased person’s cell phone to a funeral home to get a thumbprint in order to unlock his cell phone. The man was previously killed by police after a traffic stop turned violent. The police believed the man was involved in a drug trafficking scheme and wanted to gather additional information, and believed that the man’s right to privacy in the information stored in the phone died with him.

This is not necessarily a correct interpretation of Fourth Amendment jurisprudence. Just like legal ownership in personal property passes from the deceased to their established heirs (by law or by instrument), the privacy rights in such property also passes. In the above situation, ownership in the man’s cell phone ostensibly passes to his estate, which means that the executor can claim privacy rights in the phone, even though it was in the police’s possession.

While this matter is specific to Florida, the reasoning could apply to similar cases in Michigan. If you have additional questions about your Fourth Amendment rights, an experienced criminal defense attorney can advise you.

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