For many years, state and federal laws have restricted the ability to eavesdrop on other people’s telephone conversations and other electronic communications. These so-called wiretapping laws vary from state to state, with some states giving the public more protection than others. In Indiana, purposefully intercepting another person’s electronic communications can be a felony offense that carries penalties including up to eight years in prison and a $10,000 fine.
All this said, these restrictions do not always apply to the police. Law enforcement can often tap someone’s phone or intercept their email, text messages, bank transfers and other communications. They just need to get a warrant first.
Warrants and the Fourth Amendment
The Fourth Amendment to the U.S. Constitution protects the public from unreasonable searches. Courts understand this provision to mean that police must generally get a warrant supported by probable cause before they can search a suspect’s home. This applies to searches of the suspect’s electronic communications, as well, so long as the communication is one in which the person has a reasonable expectation of privacy.
There are many exceptions to the warrant requirement for physical searches. For instance, courts will find that police can conduct a search without a warrant in cases of emergency, or when evidence of a crime is in plain view. Likewise, courts have found exceptions to the warrant requirement for electronic searches in cases involving threats to an individual’s life, threats to national security, and in certain conspiracy investigations.
Constitutional defense
One powerful criminal defense strategy is to question the constitutionality of a search. If a defendant can show that the police violated their Fourth Amendment right to be free from unreasonable search, they may be able to get the court to suppress the evidence obtained in that search. Without the ability to use this evidence in court, the prosecution may be unable to secure a conviction.
It isn’t easy to win a case like this, but a Fourth Amendment-based defense can be a powerful strategy. Those who are facing charges that involve electronic communications can speak to an experienced criminal defense attorney about their options for defending their rights.
