Abandoned Password Protected Phones and the Right to Privacy
This article discusses the Fourth Amendment and our right to privacy under the law in regards to password protected devices. "Without a search warrant, the defendant would, of course, assert his right to privacy because he would argue by his act of password protecting the contents of the phone, he evidenced an intent to exercise his right to privacy."
October 21, 2024 at 10:00 AM
9 minute read
In People v Gomez, 225 A.D.3d 710 (2nd Dept. 2024), decided on Mar.13, 2024, the Appellate Division of the New York State Supreme Court for the Second Judicial Department, rejected the defendant's contention that his attorney was ineffective because he failed to move to suppress his cell phone contents. The Appellate Court found that the defense attorney's failure to move to suppress the contents of the defendant's cell phone that was password protected but abandoned by him was a novel theory and thus not subject to the ineffectiveness standard.
The underlying issue concerning the viability of a motion to suppress the contents of an abandoned, but password protected cell phone raises a novel legal question ripe for discussion.
In Gomez, the defendant was convicted, after a jury trial and judgment of the County Court, Dutchess County, Edward T. McLoughlin, J., rendered July 1, 2019, of predatory sexual assault, criminal sexual act in the first degree, burglary in the first degree, assault in the first degree, and related charges, arising out of a sexual assault of the complainant, a neighbor of the defendant, in the complainant's home while her then five-year-old daughter was present in the home.
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