Mixed Decisions Concerning Police Searches Of Your Mobile Phone On Arrest

from the legal-or-not? dept

A year ago, we had a lively discussion around here concerning the legal question of whether or not police could search your mobile phone if you are stopped for a traffic violation. It seems that the question is far from settled. Declan McCullagh details two separate lawsuits in which judges came to opposite conclusions about the rights of police to search mobile phones or other devices on persons being arrested. It's clearly allowed to search through physical belongings -- but when it comes down to digital belongings, it's not at all clear. It comes down to the same issue being debated concerning laptop searches at the border. Traditional law concerning such searches assumes that what you have on you is stuff you purposely chose to bring on that trip. However, in a digital age, where your devices "keep everything" the opposite is true. You automatically bring everything and only exclude that which you purposely choose to leave out. Thus, the old laws don't really make much sense and could lead to some dangerous and highly questionable scenarios. Hopefully, the courts will recognize this before too long.


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  1.  
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    Ken, Jan 13th, 2009 @ 5:54pm

    No Way

    I'm no lawyer, but there are some errors in this article.

    The police do not have the right to search your car on a traffic stop, without probable cause or your consent. They can't pull you over for a tail light, then proceed to strip search your car looking for anything illegal. Last I checked, we live in the United States, not Germany 1942.

    On a traffic stop, you are not under arrest, nor are you free to leave. I forget the legal term, but never the less, since you aren't under arrest you are under no obligation to say, or show anything.

    I think there's a few lawyers out there that would just love a civil rights violation case, if they grabbed your cell phone and started perusing through your accounts, time planner, contacts, etc.

     

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  2.  
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    Anonymous Coward, Jan 13th, 2009 @ 6:10pm

    Re: No Way

    I think the term you were thinking about is "detained"

     

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  3.  
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    Anonymous Coward, Jan 13th, 2009 @ 6:11pm

    Re: No Way

    Under Duress i believe it is :)

     

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  4.  
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    IANAL, Jan 13th, 2009 @ 6:16pm

    Re: No Way

    Yes.
    There is a big difference between being stopped for a traffic violation and being arrested. When you are arrested, they can and do go thru what is in your pockets and what is in your car if you were driving it at the time. But this does not (should not) happen when being issued a traffic citation. They can make all sorts of claims about probable cause, some of them even shoot you when you are already restained.

     

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  5.  
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    Anonymous Coward, Jan 13th, 2009 @ 6:18pm

    Re: No Way

    "The police do not have the right to search your car on a traffic stop"

    Try telling that to the officer who pulled you over because he sees that you are a white female with a black male in the passenger seat.

    The officer will start off with a, "Mamm, is everything okay tonight?" question. And then followup with a, "Sir, how do you know this woman?" question.

    Gotta love LAPD!!!

     

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  6.  
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    dirk, Jan 13th, 2009 @ 6:31pm

    I know its about Britain!

    I think this article is about the UK. Civil Rights are not considered here, as we are technically subjects and have no constitution, so its up to the government to do whatever it likes in term of policy - and to pass laws to be used for right or wrong.

    America escaped all this via independence, but not England, and even though the monarchy is irrelevant now, the old systems are still in place that fool the public into thinking we have free speech and also "rights". This is why Britain has so much CCTV, phone conversation monitoring systems for "keywords" since the 1970s and now Email and ISP monitoring. Even joining the EU was no escape, Britain wanted to avoid applying the EU consitution too for similar reasons!

    What a "great country". Whatever political party is in, and they wonder why nobody under 40 votes anymore!

    (is that a swat team I hear now after clicking submit breaking down my door after seeing this http data being posted) ;)

     

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  7.  
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    THORN, Jan 13th, 2009 @ 6:35pm

    A warrentless search incident to arrest is usually for 2 purposes. The first is for the safty of the arresting officer, which in the case of digital content wouldn't apply. An officer cannot be infected by a computer virus (unless he's robocop) or be harmed by digital data.

    The second reason would be to inventory the belongings of the person under arrest. This again wouldn't apply, as any data on said devise would remain on the devise. By inventorying the digital devise the data is secured.

    If the police want to specifially look at the data on a devise they would need probable cause and a warrent. Failure to obtain a warrent would violate the arrestee's 4th amendment rights against unlawful search and seizure.

     

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  8.  
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    billy bob, Jan 13th, 2009 @ 6:59pm

    Re:

    Anyone who allows "Big Brother" to search anything is dumb!

    Even if you feel that you do not have a choice, you can always say "NO" and not consent to anything! Then the ball is in their court, and without probable cause, they're probably screwed.

    This is NOT legal advice, however "just say no"! It worked for Nancy Reagan.

     

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  9.  
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    tommy, Jan 13th, 2009 @ 7:18pm

    SMS messages

    This could be a big issue for people who have SMS messages. The police could read them, they might claim that the messages were linked to illegal activity. Then they would get warrants for all of your contacts as a form of intimidation.

     

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  10.  
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    Anonymous Coward, Jan 13th, 2009 @ 8:21pm

    Re: No Way

    The police do not have the right to search your car on a traffic stop, without probable cause or your consent.
    Technically true, but probable cause is incredibly easy to create. For example, all the officer has to do is claim that he "thought" he smelled the odor of marijuana. If a search then fails to turn up any marijuana that's OK, all that matters is that the officer be willing to say that he "thought" he smelled it. There are a bunch of other ways that probable cause can be generated too and it takes a really dumb cop to screw it up (but some if them still manage to do so). And don't get any ideas about challenging them on it either or they may just decide to really tear your car apart and leave it in a pile of pieces on the side of the road (they aren't responsible for damages or putting it back together).
    Last I checked, we live in the United States, not Germany 1942.
    Sometimes it can be hard to tell the difference.

     

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  11.  
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    Chief Justice Marshall, Jan 13th, 2009 @ 8:23pm

    Re: I know its about Britain!

    Uh... sorry to disappoint you and your beliefs of being oppressed and denied rights, but take a look at Article 8 of the European Convention on Human Rights. I didn't feel like looking for anything specific to England b/c of its rights guarantees' decentralized nature, but this is pretty clear, including the part about the right to the privacy of your correspondence.

    http://en.wikipedia.org/wiki/European_Convention_on_Human_Rights#Art._8_-_privacy

    I'm sure you could find a more official place with the same, if you feel like arguing the credibility of wikipedia. But I'll leave that on you.

     

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  12.  
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    Esahc (profile), Jan 14th, 2009 @ 7:45am

    Re: Re:

    I dare you to try that.

     

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  13.  
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    Tony, Jan 14th, 2009 @ 10:18am

    Re: Re: I know its about Britain!

    "...take a look at Article 8 of the European Convention on Human Rights"

    Since, as we all know, it is absolutely NOT POSSIBLE for a government to CLAIM to act one way while actually acting in another.

     

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  14.  
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    Dan, Jan 14th, 2009 @ 10:40am

    Wow...

    So sorry to the European posters for whom rights are not as clearly enumerated as for their US counterparts.

    I agree with the previous post as to the powers delegated to police with regard to warrantless search (cataloguing possessions & digital devices). I wouldn't think a law degree would be necessary to see on its face that rummaging through your digital "belongings" would be a clear violation of 4th Amendment rights without some clearly demonstrable (e.g. more than the proverbial "odor of marijuana") probable cause.

    Unfortunate as it is, though we have clearly enumerated rights under the US Constitution, and as some here have also noted, the differences between our rights and how a traffic stop actually plays out are somewhat large. While it may be illegal for a police officer to ask me where I am going at the time of the stop, I may respond anyway, for fear that offending the officer will cause me more grief than the surrender of my right to be free from illegal questioning.

    It has been done, however; you can draw the line in the sand with the offending officer and demonstrate that you are aware of your rights in the given context and will not tolerate violations. You may even (as I have managed) to pull it off with enough humor that the officer leaves you alone (and that with a smile on his face!). You may not "luck out" as I did, though-- sad to say, but if you decide to make a stand for your rights, be prepared for additional time, cost and headache, and possibly a court date as well.

    Some still have it worse; I've seen the police in other countries engage in corrupt practices that seemed almost ingrained into the culture... truly sad indeed. Perhaps some days it is hard to distinguish between the US today and Germany circa 1942, but hopefully, change for the better truly will grace us on 1/20/2009!

     

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