Police Search of Cellphone SIM Card Found Inadmissible

Division VI of the Argentine Court of Appeals in Criminal and Correctional Matters dismissed a procedure against an alleged thief based on the inadmissibility of a police search (“G., F.J.”, CCC 37443/2018/2/CA2).

The facts of the case are the following: the accused was arrested for allegedly appropriating a cellphone at a bus stop. The police officer working on the case unlocked the cellphone, extracted the SIM card, and placed it in his own device to identify the victim.

The defense argued that the police search was illegal, but the Court of First Instance dismissed that argument. On appeal, the Court of Appeals found that the police search had been inadmissible, refused to continue the legal procedure, and ordered that the accused be set free.

The Court held that the police officer had exceeded the scope set for police intervention by the applicable procedural law. It stated that there had been no particular situation of need or urgency which justified the way the police officer had acted, and that the correct procedure would have been to seize the cellphone so that an expert could conduct a technical examination.

The Court also pointed out the existence of several documents and protocols which seek to safeguard this type of evidence, including the Ministry of Security’s Resolution No. 234/2016 (further information here)and the Budapest Convention (further information here), and emphasized the value and particularities of digital evidence. In addition, the ruling found that there had been a breach of the accused’s right to due process and of the victim’s right to privacy.