Police Can't Download Your Electronic Info Without Legal Cause

Question:  What are “data extraction devices” (DEDs) and can the state police use them to obtain cellular telephone information from drivers who are stopped by a trooper? 

— Sean from Fowlerville

Answer: This topic generated a flurry of questions since it has had significant media attention regarding the American Civil Liberties Union (ACLU) request for documents from the Michigan State Police and our use of DEDs.    

To be clear, there have not been any allegations of wrongdoing by state police in the use of DEDs. 

The implication by the ACLU that the state police uses these devices “quietly to bypass Fourth Amendment protections against unreasonable searches” is untrue, and is a divisive tactic that unjustly harms police and community relations.

A “data extraction device” (DED) is a device used to obtain (download) information from other electronic devices such as cellular phones, computers etc.

The Brighton Post does not have a DED, has never had one in the past and we don’t intend to have one in the future. That being said, DEDs do exist and all police, not just the state police, can use DEDs in all sorts of criminal investigations, to obtain evidence to prove or disprove allegations. 

Police must follow laws to obtain electronic info

If a trooper needed to obtain information from a cellular phone, the trooper would use the legal process to secure the cellular phone and then send the phone to our Computer Crimes Unit for them to obtain the data.

Police officers have to follow rules and there is a document that spells out these rules. This document has been around since Dec. 15, 1791, and it’s called the Bill of Rights that's enshrined in our Constitution. In regards to the DED question, the Fourth Amendment is particularly direct:

"The right of the people to be secure in the persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Fourth Amendment requires a search warrant for the police to conduct “searches.”

Some exceptions exist

Without trying to cloud the issue, there are 10 exceptions to the Fourth Amendment “search warrant rule.” They are: search incident to lawful arrest, probable cause and exigent circumstances, plain view, consent, Terry encounters, inventories, emergencies, hot pursuits, administrative searches and border searches. All are narrowly defined. 

Finally, anytime the police search or seize property, it can be challenged in court. If a judge finds the property was obtained improperly, the judge can exclude that property, and any evidence/information resulting from that property can also be excluded. This is called the “exclusionary rule” or “fruit of the poisonous tree doctrine,” a very powerful rule to deter police activity that violates the rights of a citizen.

To answer this question, I utilized state police media resources and the “Michigan Criminal Law and Procedure: A Manual for Michigan Police Officers.” The manual designed for police officers and law enforcement students and discusses the law most commonly applied by police officers in Michigan, including criminal law, laws of arrest and interrogation, use of force, police liability, and search and seizure.  It’s a good manual and printed by Kendall Hunt Publishing Company.

If you have a question for Ask A Trooper, send it to askatrooper12@gmail.com.

Meet Trooper Dankin

Val Dakin has been a trooper since 1996. She has a bachelor's degree in criminal justice and her father David and Uncle Jamie were both state troopers (now retired). Dakin was an Indiana State Trooper prior to coming back to Michigan and joining the Michigan State Police as a graduate of the 114th recruit school. She has served at posts in Owosso, Detroit, Ithaca and now Brighton. Dakin is currently serving as one of the post's trooper investigators and has received specialized training as an evidence technician, advanced accident investigator and serves as the Livingston County sex offender registry coordinator.

Editor's note: This column was updated May 6 to reflect whom the correct author was. Sgt. Mark Thompson writes the column.