Many of us who have seen movies and television programs involving police investigations are familiar with the concept of wiretapping, or police listening in on someone’s phone calls. It can be scary to think about police officers listening in every time you talk to someone on the phone, even during your most intimate conversations. In this day and age of texting and emails, you may also wonder whether the police are able to access these alternative forms of communication and monitor your written conversations with others. Below, our experienced Salt Lake City criminal defense lawyer at Overson & Bugden explains when and how Utah police can wiretap your phones and when and how they may be able to access your other digital data.
Wiretapping in Utah
In order for the police to wiretap your phone and monitor your conversations, they must apply for a wiretap court order, which is similar to a warrant. They must present the judge with a great deal of specific information in order for such an order to be granted. This information includes the following:
- The identity of the law enforcement official making the request
- Details regarding the offense that the officer believes has been, is being, or is about to be committed
- Description of the type of communication sought to be intercepted
- If known, the identity of the person whose communications the officer is seeking to intercept
- A statement explaining which other types of less invasive investigative methods have been obtained before seeking the wiretap order
- How long the officer wishes the wiretap to last and what circumstances will lead to its termination
As you can see, an application for a wiretap order is often more involved than one for a typical warrant. This is because an ongoing order allowing police to listen in on your phone calls is considered a particularly invasive investigative method that should only be used when there are no other options. A judge will consider all of the information in the application when deciding whether or not there is probable cause for an order to be issued. Probable cause is present when there is a great likelihood that tapping the phone will lead to intercepting evidence of a crime.
If a wiretap order is granted, the cell phone or landline provider company will be issued a copy of the order and be required to cooperate with the investigation. There will often be limits on the length of the wiretap and which types of calls are permitted to be recorded. The officer in charge of the investigation will be required to make continuing reports to the judge who granted the order. The judge can choose to grant extensions or end the wiretapping when the preset time period has run out.
Access to Text Messages, Emails, and Other Digital Data in Utah
When wiretapping laws were first written, talking over the phone was essentially the only way to communicate unless you wanted to meet in person or send something through the mail. However, in today’s digital age, when smartphones are basically mini-computers in our pockets, many people communicate with each other through text messages, emails, and other applications that provide messaging services. In most states and under federal law, police are permitted to access any of this information through third parties, such as cell phone companies, that you voluntarily released this information to as part of your service contract. They do not need to have a warrant to access such third-party data.
In 2019, however, Utah passed a law closing this “third-party loophole” and requiring that the police obtain a warrant before they access personal data stored with third parties. This was in response to the fact that in today’s age people have to release all kinds of data to internet service companies, cell phone service providers, and owners of apps just to function in everyday life. This law means that, in Utah, police can no longer simply request such communications information from the third-party provider. Instead, they must go through the warrant process and explain to a judge why probable cause exists to suggest accessing your digital data and communications such as text messages, emails, and app usage will assist in a criminal investigation.
How to Fight Improper Wiretap Orders or Illegal Wiretapping in Utah
If the police monitor your calls without first obtaining a warrant, if the warrant is defective in some way, or if the officers go outside the scope of the warrant in the way they use the wiretap, an experienced Salt Lake City search and seizure defense lawyer like those at Overson & Bugden can file a motion to suppress any evidence obtained through the use of the wiretap. Under the “fruit of the poisonous tree doctrine,” any evidence that is obtained from an illegal wiretap cannot be used against you in a court proceeding.
Similarly, a lawyer can file a motion to suppress any written communications, such as texts or emails, obtained from a third-party provider without a warrant in violation of Utah’s 2019 privacy law. Many police officers still try to access this data without a warrant in the hopes that you do not know the law and the rights that it gives you. A Park City criminal defense lawyer can attack this improper use of your personal data and fight to ensure it is excluded as evidence in any case filed against you.
If You Are Concerned about Your Phone Calls Being Monitored, Call Our Utah Criminal Defense Law Firm Today
Utah is perhaps the most stringent state in the nation when it comes to protection of your digital privacy. Not only are police in Utah forbidden from listening in on your phone calls without a proper wiretap order, but they are also forbidden from accessing any records related to your cell phone communications from third-party providers without obtaining a warrant. Unfortunately, police do not always follow these rules. Our experienced Utah criminal defense attorneys at Overson & Bugden can defend you against any overreach by the authorities and fight to get any evidence obtained in violation of your privacy rights barred from being used in criminal proceedings against you. For a free, confidential consultation, call us today at (801) 758-2287.