CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, February 8, 2023

Mensah on Counsel and Cell Phone Searches

Nathaniel Mensah (Georgetown University Law Center) has posted 'Can You Hear Me Now?': The Right to Counsel Prior to Execution of a Cell Phone Search Warrant (Minnesota Law Review, Vol. 107, No. 3, 2023) on SSRN. Here is the abstract:
As advances in technology allow law enforcement to gain ever more expansive surveillance powers, the criminal justice system scrambles to keep up. The Fourth Amendment has been the primary vehicle through which modern criminal procedure has adapted to new technologies. That limited approach risks undue harm to criminal defendants and the truth-seeking function of our adversarial system by allowing ex parte warrants authorizing invasive searches of a defendant’s cell phone without the assistance of counsel. This Article calls for applying existing Sixth Amendment doctrine to modern technology, much like the Supreme Court’s recent Fourth Amendment juris-prudence.

After putting this previously overlooked procedure in context and exploring the shortcomings of current doctrine, this Article analyzes the evolution of the right to counsel jurisprudence, before arguing that a post-indictment search of a cellphone must be interpreted as a “critical stage” in a prosecution entitling a defendant to the assistance of counsel. This Article concludes by discussing how courts can implement this “critical stage” interpretation—and how legislatures can go even further—to vindicate societies’ interest in balancing law enforcement surveillance powers and the privacy rights of individuals.

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