Another Court Says It's Okay For Police To Search Your Mobile Phone Without A Warrant
from the stretching-the-law dept
Three years ago we discussed the legality of police being able to search your mobile phone without a warrant after any arrest (such as, say, following a traffic violation). Allowing such searches without a warrant didn’t make much sense to us, but there were some strong feelings in the other direction as well. Two years ago, we noted that the courts still seemed divided on the issue, and now there’s another ruling as well. The California State Supreme Court has ruled that searching the contents of your mobile phone without a warrant is fine.
The judges’ argument is based on the idea that current case law allows police to seize and examine anything they find on you — such as your clothing or a cigarette package. Even if you accept that this is reasonable, to extend that to the contents of a mobile phone seems to be going too far. Similar to our concerns about border patrol being able to snoop through your laptop, accessing the contents of your mobile phone involves access to all sorts of private information. The issue is that the caselaw that the court used to make this ruling was based on stuff you actually chose to carry with you specifically. But, these days, with a smartphone that has access to the internet, and is basically a mini-computer, it’s not like you specifically select which emails/browsing history/etc. to “take with you” when you go out. So assuming those things are fair game makes little sense. Indeed, a couple of judges on the panel dissented, noting how mobile phones were quite different.
With so many courts split on this issue, it seems like only a matter of time until the federal Supreme Court decides to weigh in on this issue as well. Hopefully, the justices can understand the differences between searching stuff found on you, and being able to freely access a portal to all sorts of private info.
Filed Under: 4th amendment, california, mobile phones, privacy, searches
Comments on “Another Court Says It's Okay For Police To Search Your Mobile Phone Without A Warrant”
If you have a box of paper files or a stack of faxes on your front seat, the police would be able to look at those. It isn’t really any different to consider a cell phone or laptop as being very much different from either of those. They are just information that is on your person or in your car.
This isn’t a very surprising ruling. It would be surprising if it went the other way.
Encryption
I wonder what this means for password-protected phones? If the cops arrest me and try looking through my phone and find it locked with a password or encrypted, can they force me to open it up for them?
In most states, warrantless searches are permitted to incidental to arrest (as noted before: the cigarette pack). This can be done to obtain evidence of a crime and/or to inventory all the property on a suspect. Depending on the crime, it is very possible for a phone to contain evidence of a crime on it. Think about this: wallets and handbags (on the person of someone arrested) have been routinely searched for many years and they also may contain very private stuff. You have no expectation of privacy when you’re being booked, whatever you have on you is fair game.
Encryption
They can and probably will ask you to unlock it (if they’re doing their job and depending on what you’re being arrested for). Failing to do so (depending on the jurisdiction and it’s laws), you could be charged with obstruction. Or, the officers could go before a judge, obtain a warrant and your failure to unlock it then could result in a contempt of court charge. Regardless, if it’s that important, the state labs usually can get through most password protected stuff like that.
Re:
Please re-read the post and apply some thought – it is very clear what the difference is.
They are allowed to search your person because anything you carry in the ordinary way is probably associated with the purpose of your present excursion.
However you don’t carry all your office records with you in paper form and they would have the right to search your home without a warrant just because they arrested you and you were carrying the key.
Re:
You have no expectation of privacy when you’re being booked, whatever you have on you is fair game.
What if your data is stored “in the cloud”?
As I commented above, they would have the right to search your house because when you were arrested you were carrying the key to the door.
Re:
You CHOSE to bring your phone, because you assumed it would be useful. Why wouldn’t they be allowed to search it? Granted “it’s not the same thing” but who’s to say you didn’t get that speeding ticket because you were texting? In which case now it becomes completely relevant.
“Hopefully, the justices can understand the differences between searching stuff found on you, and being able to freely access a portal to all sorts of private info.”
Too bad lawyers don’t think with portals.
Encryption
Sorry, I may be anti-authority but a police officer cannot compel me to give a password any more than they can interrogate me without issuing the Miranda warning. They can come with a search warrant and I’ll unlock it…and even then I’d fight tooth and nail.
Re:
Your house is not accessible through the key, your data is through your phone without having to move. So leave your data at home, where they can’t access it if it’s so personal and precious… in which case you shouldn’t have it accessible through your phone anyway.
Lots of people use Cell Phones as their primary phone and don’t even have a land-line. It replaces the land-line and pager combination.
If you were arrested with a pager, can they automatically have access to your land-line without a warrant?
Hum…This one has me scratching my head.
On one hand, cell phones and other electronic devices may have evidence relevant to the crime the person is being arrested for, so they could be searched, the same way suspects are searched for weapons and evidence upon arrest. Also, if you are being arrested, I’d say that many of your liberties (including privacy) are put on hold (within reason, of course. We are, after all, innocent until proven guilty).
On the other hand, if I’m being arrested for speeding, for example, the police has no business snooping on my private stuff, and I can’t really see what info they could acquire that could be relevant to the case. The police can always acquire a warrant to snoop on my data if they REALLY need it.
Probably the best overall solution would be to go the warrant way, unless very specific circumstances require that the police take immediate action (and that would have to be VERY thoroughly justified).
Time to Encrypt pass my phone to? Thanks for the heads up!
Re:
Now that I think about it, it is a BAD idea to go warrantless.
Suppose my smartphone has access to my email accounts and that I am a smart lad and have an application that lets me access my home PC files from it. Also, I’m a security dummy and have my device memorize all of my passwords.
Suddenly, the police can snoop through my private emails and files without a warrant, just because I was speeding (for example).
Not a good idea. Get a warrant (but remember the special cases!).
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You have no expectation of privacy when you’re being booked, whatever you have on you is fair game.
I hope this twisted reasoning doesn’t catch on. What’s to stop the powers-that-be from arresting political dissidents or anybody else that they may not like, but are unable to gather enough evidence for a search warrant. If you’re arrested and the phone was a part of the reason (talking and driving, wirefraud, etc.) then by all means confiscate the phone, but the contents are off limits until a court decides otherwise.
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It’s only “a bad idea” because you’re using something without knowing how it works. My advice: don’t lose your phone or you’ll be epicly pwned.
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It might be relevant that you had a phone – the content is irrelevant searching for your phone is OK searching inside it definitely isn’t.
If they need to find out if you were texting whilst driving they can get that data reliably from your phone company (with a warrant of course).
Re:
your data is through your phone without having to move.
why on earth do you think that this makes a difference?
Re:
So what you’re saying is that if I am pulled over in front of my house, and I have my key (or maybe just my garage door opener), then the police can search my house, because it’s right there. Got it.
Phones are rapidly becoming small computers (with mine I can ssh into my home server, does that mean if I get pulled over the police should be able to pull the full contents of my home server?)
The problem is that these devices are (or quickly becoming) not about what you choose to bring with you at that time, but about a connection to your whole life.
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Exactly, if they arrest me while I am carrying my iPhone which has apps to facebook, twitter, gmail, myspace, Chase Bank, VNC access to any computer, and others; this ruling effectively says the police can search all those accounts without a warrant just because I had my iPhone (or an Android/Win7/etc smartphone) with me which happen to have apps and access. The cloud data is now available to them without a warrant.
My expectation (hope?) is that the tech will deal with this long before the law catches up, and the law will actually drive change in the way the tech works, just not in the direction the ‘powers that be’ will actually appreciate.
By that I mean I expect encryption to become the default standard for all data both in rest and in transit. We’ve already seen this with the crackdown on bit torrent traffic. Ubuntu will encrypt home directories as part of the standard install (it’s been possible in *nix for a long time). Windows and OSX have software available to encrypt the hard drives. I’m sure phones won’t be far behind.
Well...
Well, I have two view points on this one. If it where me, they would have to hack the phone to get in before I’d tell them the password, warrant or not. I consent to nothing..
Second, They already have all your shit as it is right now so what’s the big deal. If you think anything you have online (or offline for that matter) is known only to you, then your already in for a nice surprise.
NSA/TSA/DEA/CIA/FBI/DHS and many more I’m sure have the mainline tap right into the core routers on the internet already as well as a tap right into the PSTN (phone network for those that don’t know). Your phone calls, GPS loc, everything is at someones finger tips as I type this. Remember the Patriot Act right? ok.. theres ur answer..
Until we get off our asses and take our country back from the tyrannts..
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You ignore the fact that a cellphone today is a complete computer is not just a gadget is your cellphone, your mp3 player, your appointment book, alarm, calendar, storage device and so on.
It is just scary that people would be allowed to search such a personal thing without good cause.
People were joking a while back about kids getting arrested for having pirate songs on their iPods well laugh no more the doors are open for that to happen any day now.
The police will use this to arrest anyone they don’t like without a second thought.
Re:
Not everyone “choose”, so people need that little rectangular box to do business, to keep appointments and so forth, like some don’t choose to drive they need to drive trucks, cabs and other vehicles, can the police get on a motorhome and do a complete search on it?
simple
I think a fairly fair way to deal with this would be to only allow searching the device when it is disconnected from the network/cell service/etc. Anything that’s on the phone would be accessible, anything that isn’t on the phone won’t be.
That way the data that’s on the person is allowed to be searched (akin to papers/etc on the person) but stuff that is stored on another computer/network isn’t allowed (ex: files at the office/home). Stuff on the network should be treated like someone calling up their office/home and requesting someone to give them confidential information on the phone: the person can get the info because it’s theirs/they have permission to access it, the police would need a warrant.
However, I would still prefer no searching without warrant or at least good probable cause.
Compare to laptops
If I’m carrying my laptop and I get arrested, are they allowed to search through it without a warrant?
How exactly would the case with the laptop be any different than the phone?
Re:
This apologist crap is tiresome. Do you have any rational logic to back up your opinion?
Encryption
I guess we need Judge Dread patrolling the streets – that way the perp can be tried, convicted and executed – the savings could alone could support at least two more wars.
The logical conclusion is to not own a “smart” phone.
My Views
If your cell phone is locked with a password or encryption, they cannot charge you with obstruction for refusing to unlock the cell phone or in giving them access.
The way the law currently works, law enforcement can only conduct an inventory of what you have in your possession, at the time of your arrest. Police officers do not have an unalienable right to search through your personal things without a reasonable right.
Since it’s a cell phone, and if you have encrypted the phone or locked it with a password, you can refuse to comply because there is nothing on the contents of that cell phone that would endanger a police officer’s life. What do they think you are going to do? Injure them with your cell phone?
However, as some Californian courts have ruled, if a Federal or District court judge orders you to provide the access key or provide access, you can be held in contempt of court for refusing to give an officer of the court (lawyers, district attorneys) access to that device.
These rulings by these judges that have been going on are eventually going to be overturned because these rulings go too far in abusing the rights of someone who has been detained by police officers. Law enforcement have restrictions to what they can and can’t search. Even if the Cell Phone wasn’t unlocked, any information that they would have discovered would be thrown out by the courts because the police would have failed to get a search warrant.
Put it this way, any defendant who found himself in this situation would have grounds for an appeal based on his fourth amendment rights against unwarranted searches and seizures.
Re: it happened to me
Wednesday I was forced with a wararnt by a detetcive who came to my job with the warrant to search my phone and aske dme for my password. The phone was already in his posession from a previous arrest. It is a android smartphone with a lock. He forced me to give a password and threatened to arrest me. I did for fear of being arrested again. A lawyer told me he head no right to do this. My 5th ammendement right keeps me form having to “say” my password. I could have refused but would have probably went to jail.
Re:
It’s always hilarious to see you guys blow everything way out of proportion, seriously. You crack me up.
Why would being arrested with your mini computer (you call them cell phones) be any different than being arrested with your tower or laptop? If it’s with you, why couldn’t they search the CONTENTS (some of you appear to black out that word in your mind; if I don’t see it it’s not there). Who talked about twitter? Who talked about failbook?
Your cell phone is, in effect, the same thing as a pack of cigarettes. It serves a specific purpose. They can search your pack, but will they call the tobacco company? If they see your dealer’s phone# inside your pack, you can make sure they will note it and run checks through it. Why can’t they do the same for your phone? Because YOU decided to add all that information to it. If you put your naked girlfriend’s picture in that pack of cigarettes, expect the cops to see it if you get arrested. Why does it differ from your phone?
Plus, as stated before, if you’re dumb enough to carry a mini computer and not have any passwords (or all auto-saved), then you deserve to get your information stolen or looked at, whatever the consequences or circumstances. You simply asked for it, even if being out of pure ignorance. Enough resources to help you secure your data, even for the complete newbie.
If you drive a car but can’t really drive, you look like a retard. If you use a phone and have no idea how to secure all that information you’re constantly sending and receiving over it (most of which ISN’T private anyway and sometimes accessible by anyone — facebook, twitter, etc), then it really does suck to be you and I can completely understand why this infuriates you.
"The police will use this to arrest anyone they don't like without a second thought."
“The police will use this to arrest anyone they don’t like without a second thought.”
In my neighborhood, they just shoot you (multiple times). (Not kidding). God help those who are mentally slow or who do not speaky da english so well, or physically impaired and unable to get on the ground fast enough or raise their arms high enough. One 70 year old guy was beaten into the ground because he couldn’t get his hands high enough, due to an old war injury; he was in the park and said to a man whose dog was chasing/biting a goose that if he had a gun, he would shoot the dog… dog owner told the police, police beat up old man (hospitalized), who, of course, didn’t have a gun, but his verbal articulation of the word “gun” was enough cause to beat him into the ground. And,if you do have a gun, like a 16 year old bragging to his girlfriend that he had one (she called cops) and and shot him 9 times (I heard the shots – like a machine gun) when he didn’t move fast enough in response to commands.
Re:
The average user has no clue how to protect himself. But what we are exploring here is not the stupidity of technology n00bs, but the fact that the police COULD snoop through tons of private data with no warrant at all.
Criminals are expected to behave badly and I would take measures to protect my data in case my phone was stolen, but the police? Do I need to defend my private stuff from the police now? For speeding? That’s not reasonable.
Re:
Actually, smartphone is not a great example. A Laptop would be a much better one. Most people don’t bother to protect the login with a password. Does this give the police a free ticket to search the laptop?
Encryption
I didn’t say to give the password, I said to unlock it. Either way, depending on the laws where you live, it could be obstruction.
Re:
No, you’re making this more complicated than it really is. Having a “key” on you doesn’t give them the right to search your house – you’re not carrying your house with you, just the same way that having an ATM card in your wallet doesn’t allow them to search your bank accounts.
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No.
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Even someone speeding might have evidence of that on their phone. You guys tend to overlook the fact that most people (criminals especially) are nowhere near as bright as you are. There are idiots who might speed and record the experience laughing about how fast their going. People do REALLY stupid stuff sometimes.
As a corollary of that, most cops are not the most tech savvy guys either. They probably couldn’t find most stuff on your phone without someone walking them through it. I’m not saying they’re stupid, just not as up to speed on technical stuff as most of the people on here.
Having said all that, what most officers are taught to do is to (at most) give the phone a cursory look-over, looking for information that might be time sensitive (some phones will overwrite messages if the in-box is full and new messages arrive. If they suspect that evidence does exist on the phone, they’ll get a warrant just to be safe. The guy’s in custody, he’s not going anywhere, there’s time to get a warrant typed up and presented to a judge. The phone will still be there-with the possible exception of the previously mentioned items that might be time-sensitive.
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Joe:
IANAL so bear with me here.
You are saying that in some states I could be guilty of obstruction if I didn’t use my password to open my phone for the cops so they could search it — without a warrant? Explain to me how that fails to run afoul of “nor shall any person … be compelled in any criminal case to be a witness against himself”
Re:
“The police will use this to arrest anyone they don’t like without a second thought.”
Did you miss the part about the arrest coming before the search?
How exactly does being able to conduct a search of personal property of an arrested person suddenly enable cops to arrest people they don’t like?
Re:
Umm, because you’re not being a witness against yourself. If a cop pulls you over and asks you to unlock the door and get out of the car so he can search it (say he has probable cause to conduct the search), you’re not being forced to be a witness against yourself.
Re:
“What’s to stop the powers-that-be from arresting political dissidents or anybody else that they may not like, but are unable to gather enough evidence for a search warrant.”
That would be what the laws and courts are for.
Re:
So my car and my phone are different than my house. If a cop comes to my door and demands that I unlock it, he needs a warrant.
I guess what people are having trouble with is — These days, what was formerly in the house, is now found in the phone.
BTW, are there any states or any caselaw in particular that you can point to?
Re:
Or not be a criminal. 😉
Re:
Clarification: Any states or case examples of where failure to unlock a phone was considered obstruction
My Views
They can also search for evidence of a crime. You seriously think that the police are going to give you back a wallet with a joint tucked away in it?
simple
that’s a very good idea! i second it!
Re:
Yes, your car is different than your house: they need a warrant for your home but not for your car (It’s called the Carroll Doctrine and it comes from Carroll v. US – http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=267&invol=132)
Your phone is considered property, just the same as a wallet or organizer you had with you when you were arrested. If your phone was at home when you were arrested elsewhere, then they would need a warrant to obtain it and search it.
Re:
“Your cell phone is, in effect, the same thing as a pack of cigarettes”
Example 1: I get pulled over and there a pack of cigarettes on the front seat. The officer has suspicion i might under the influence. He open’s the pack and see’s a a razor and a white powdery substance in a small baggie. He is trained to see the symptoms of someone who might be under the influence and what many illegal substance look and smell like. Also the they have kits to test the substance. So no issues here?
Example 2: Same scenario but there a MicroSd card instead of a razor and white substance. What training do they have to determine what is or isn’t on that card and determine if any thing illegal has been committed?
Re:
I also notice the apologist is once again posting under “Anonymous Coward”…. to me, if you cannot put your name or at least a pseudonym attributed to you behind your posts? You don’t have much to say nor do you have much right to say it.
On the issue at hand here, this is the SAME EXACT BULLCRAP that the Supreme Court already said that the cops could not do. Searching your person and OUT IN THE OPEN places (a locked box is not ‘out in the open’), fine…. anywhere else, no.
Not without a warrant and not without a good justification for that. With the searching of people’s clothing, it is meant to cut down on the chances of cops being physically injured because someone has a weapon on them.
With searching phones? Sorry, doesn’t apply, and don’t give me that bullcrap about “Evidence might be destroyed!” Evidence of what? You are usually being pulled over for speeding, that doesn’t give the police carte blanche to assume that you are a rapist, murderer, or drug dealer!
Encryption
Wrong, Joe. Those laws that try to say that it is obstruction are on VERY PRECARIOUS legal standing, because it would be like the police insisting that you tell them every single place you have ever eaten, stayed at (hotel wise), etc. so they could go on a fishing expedition…. which is what any judge with AN OUNCE OF BRAINS would see it as.
Re:
Answer, Richard: It doesn’t, and Anonymous Coward is being purposefully obtuse here. Either that, or he’s just plain out and out STUPID!
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Answer: None, and they wouldn’t in SANE states be able to search that SD card without a good justification.
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They still need a warrant to search your phone if it is on you, Joe. Just like if a cop comes into my home, sees no evidence of criminal wrongdoing just by LOOKING at my COMPUTER, they need a warrant before they can search my computer OR MY PERMISSION…. which I have the right to give them or not give them.
Then, if I don’t give permission, they have to get a….. W A R R A N T! What does that spell? WARRANT! Is this so goddamned hard to understand?
Re:
Some courts have said yes…. other courts have said no. The Supreme Court, in all their STUPIDITY, has not weighed in on this issue yet and said (right decision here): “NO, YOU DO NOT HAVE THE RIGHT TO SEARCH A PERSON’S LAPTOP JUST BECAUSE IT IS UNENCRYPTED OR UNPASSWORDED!”
Re:
I apply plenty of thought.
If you choose to drive your car around with all your company records in your smart phone, it is the same as carrying around the box of documents. The method of storage doesn’t change the outcome.
Just because you have found a way to make that box of documents smaller doesn’t change reality. If the police are allowed to check your car, they are allowed to check everything in it.
Well...
Actually, Infowars…. if that was the case, then why do they have so much trouble finding child pornographers and child pornography viewers.
Answer: They are not going through the data as much as you would think they are.
My Views
A joint would be considered a controlled substance and illegal to posses. I tried asking this in reply to the comments of a AC poster. If they look in your wallet or wherever on your person and find a memory card, sim card or any electronic device that allows storage of information what basis do they have to search it? If there’s no proof it was used in a illegal manner? Just go get a search warrant and cover always bases. Why waste the courts time and tax payer money just to have it thrown out.
Re:
Joe, you miss the salient fact that ANYONE can be made to appear a criminal if the police want them to, as well as the NUMEROUS laws that are on the books in America that shouldn’t be because they violate human rights in various forms as well as Constitutional rights.
Wake up, Joe…. if you think this will just be used against ‘criminals’, do something that pisses off the government or someone in power and get back to me on that…. after your 20 years in prison or longer!
Re:
Illinois Compiled Statutes 720 ILCS 5 Criminal Code of 1961. Section 31-1:
” (a) A person who knowingly ,resists or obstructs the performance by one known to the person to be a peace officer, firefighter, or correctional institution employee of any authorized act within his official capacity commits a Class A misdemeanor. “
Re:
“12.405. OBSTRUCTING OFFICER.
It shall be unlawful for any person to obstruct, hinder and oppose a peace officer, or to attempt to do so,
when such peace officer is engaged in making an arrest or in the discharge of his duty.”
http://www.townofcampobello.us/chaptertwelve.html
Yeah, you also got to worry about city ordinances (laws) as well. 😉
Re:
Also, some states have a “refusing to obey a lawful order” statute that, depending on circumstances and jurisdictional customs, might be applicable as well.
Typically, however, since it would be a piddly charge and cause more paperwork than it’s worth, they would simply apply for a warrant and let you piss the judge off by not complying. Of course, there are exceptions, depending on the circumstances.
Re:
No, they don’t. I get that you don’t like it, but that changes nothing.
Re:
I think what you’re missing is that in the situation discussed in the article above is that THERE IS EVIDENCE OF WRONGDOING because the dude has been arrested.
If you think that I’m saying that a cop and just walk up to you randomly and search your phone, then you’ve misunderstood me (and the article).
My Views
Joe really wants the police to have the right to act like the Gestapo and say “WARRANT! I don’t need no STEEENKING warrant!”
Re:
There are exceptions to need to obtain a warrant:
1. Consent – not applicable in this case.
2. Probable Cause on a vehicle (Carroll Doctrine)- not applicable in this case.
3. Exigent circumstances – again, not applicable in this case.
4. Search incident to arrest – Bingo, this is the one that fits.
Re:
Cops lose cases every day, so Big Brother must be failing somewhere.
You miss the salient fact that most cops have a job to do and do it everyday without any hit-lists from the government on who to go after. They have to deal with alcoholics, crack/meth-heads, thieves and the normal bad guys. In fact, they have to deal with them so much, they don’t have time to sit around and dream up ways to stick to someone minding their own business.
Are all cops good guys? No, they’re human, just like everyone else and there are assholes wearing badges, just like there are assholes in every profession. But, the majority ARE good guys who aren’t card-carrying members of the NWO.
Are some of the laws on the books total shit? Absolutely. I’m with you on that, 100%.
You seem to have the opinion that cops are evil guys, out to end freedom for all of us. Nothing could be further from the truth. If you could hear what cops say amongst themselves…you’d have a whole different opinion of them.
My Views
You really need to loosen the tinfoil hat…I think you got it a bit too tight.
My Views
It would depend on the circumstances of the crime (think of an embezzler, bookie, pedophile, etc. – there might be good reason to suspect evidence might be on something like you describe).
However, as I said in an earlier post, the police would probably get a warrant, just to cover all bases. Since the person has just been arrested, neither he nor the memory card are going anywhere for a while so there’s no good reason NOT to get one. The only thing this ruling does is says that they don’t have to get one. Again, most cops will, just to head off any risk of having it thrown out through an appeal.
Cops will very often Mirandize suspects, even when Miranda isn’t necessary, just to play it safe.
Re:
usually pulled over for speeding because you’re not a true Bad Guy. Most of the people the cops arrest and who this ruling would apply to are the genuine bad guys.
Many of you on here forget that there really are a LOT of really bad people out there. It’s a common oversight, because you’re not one of them and don’t associate with people like that. But they’re there.
Encryption
Are you a criminal justice major? You sure sound like one.
Re:
Joe:
Thanks for the above cites.
So, If the police were actually arresting me, and I refuse to talk to them without an attorney, and in so doing, I tell the arresting officers that I will unlock the phone as soon as I am able to get direction from my attorney– would this still get me charged with obstruction? After all, I’m just wanting to understand my rights.
Re:
Probably not. Not anywhere around here, anyway. They’d simply get a warrant (if they had probable cause to think there was evidence on your phone). It wouldn’t be that big of a deal, unless some circumstance warranted immediate action but that probably is very rare.
Re:
In fact, if it were me, I wouldn’t unlock it and would exactly as you said: lawyer up.
My Views
“However, as I said in an earlier post, the police would probably get a warrant, just to cover all bases.”
The basis of this topic was them not needing one to search, so why would they bother?
Re:
That would depend on the crime you’re being charged with. If you’re being arrested for pedophilia, then there is a pretty good chance that there might be something on that card. If you were arrested for open container, then they probably wouldn’t bother with it.
Um...so what?
If you have a backpack and are arrested, they can search that. If you’re in a car, they can search the car and anything in it. Why should a cell phone be any different? I’m all for privacy rights, but with the law as it stands, this ruling is no surprise.
Here’s my question for you Mike: How can you argue on one hand that, for example, unlocking a phone should be legal…because if you buy it, you own it and can do what you want with it, and it shouldn’t get special treatment just because it’s digital….yet on the other hand argue that when it comes to police searches, digital goods should get special treatment?
My Views
Because getting a warrant eliminates a potential loophole. Cops will also often ask for consent to search a car when they already have probably cause to search it. So, even though they do not need the consent, they ask for it anyway, just to have one more leg propping up the search (there are other reasons they might ask for consent, but I won’t go into that).
My Views
Believe it or not, but the courts typically frown upon warrantless searches. There are fairly clearly defined guidelines but each judge is different where they draw the line on what is acceptable.
I have a question
The law allows suspect to deny request to give out words that can be directly used against him. (I don’t know the exact wordings to describe this.) Does passwords to unlock digital device qualifies to this exemption?
"The police will use this to arrest anyone they don't like without a second thought."
Tell me which country is this so I can make a note to never visit it.
Re:
Then employ the Right of refusal. The Police can search you, but not your personal effects. Last time I checked, a phone was a personal effect.
And remember, “Those who sacrifice permanent Liberty for temporary Safety deserve neither Liberty nor Safety.”
Re:
No.. it would apply to everyone, and not just someone who was a “true Bad Guy”.
Which is why warrants are a good way of determining who is a “true Bad Guy” or not.
Re:
As soon as the police have probably cause (and that can be anything) they can search the whole car. For the most part, they ask permission. Declining permission will often get the car seized until a search warrant is issued. Basically, the officer states the reason for this probably cause and asks permission to search the car. If that is declined, he may in fact detain the driver (and passengers) until such time that a warrant is issued. The car could also be impounded pending that.
And remember, “Those who sacrifice permanent Liberty for temporary Safety deserve neither Liberty nor Safety.”
That is the standard argument from people who have something to hide. I learned that from reading TD.
Um...so what?
“If you have a backpack and are arrested, they can search that. If you’re in a car, they can search the car and anything in it. Why should a cell phone be any different? I’m all for privacy rights, but with the law as it stands, this ruling is no surprise. “
There’s a huge difference, the basis for the stop or arrest means a lot. Your basically allowing law enforcement to go on a fishing expedition and see if they can catch a whale in a small pond.
“Here’s my question for you Mike: How can you argue on one hand that, for example, unlocking a phone should be legal…because if you buy it, you own it and can do what you want with it, and it shouldn’t get special treatment just because it’s digital….yet on the other hand argue that when it comes to police searches, digital goods should get special treatment?”
1. Those are two and separate and distinctive things you somehow want to join together.
2. So basically your trying to say if i get pulled over or arrested its OK for the police to let’s say go into my phone book(hand written) and call or investigate everyone listed in the book for the potential of been involved in a crime.
Re:
Yes, it would apply to everyone. I didn’t mean to imply that it wouldn’t. Anyone arrested for a crime (which is also a good indicator of a bad guy as well). People don’t typically get arrested for speeding.
I have a question
No.
Re:
I’ve found that anonymous cowards have something to hide. I learned that from reading Techdirt.
Is it obstruction if I do not carry my entire life inside a small container so that the police can easily browse what I ave been doing? After all, if I have nothing to hide then I have nothing to fear – right?
What could possibly go wrong?
I have a question
To answer a question so definitively that has not been suitably addressed with case law is idiotic.
Where did you get your JD? Quit being a know-it-all when it comes to cases concerning issues that have not been fully examined, esp. by the supreme court.
I have a question
I’m not going to make any argument that Joe is right with all the opinions he has expressed here, but perhaps you should reflect on the idea that perhaps his opinions might give you some insight into the thought process of local prosecutor.
A prosecutor isn’t exactly going to wait for a Supreme Court decision before plowing ahead with his or her own theories of culpability, so long as they think there is a chance that a judge or jury might buy it.
Crazy! You can’t trust the courts to render justice. There are so many precedents to so many laws that the system is mired down in stupid details that get nothing done.
Re:
Joe, you have all those cool quotes and links, but how do you define “Obstruction”? Is it obstruction if someone (say a cop) asks you for something and you don’t give it until you lawyered up? Or will obstruction only occur once your lawyer has been informed and you still refuse? Or does it have to be the judge that says you’re obstructing?
Re:
I’m sorry but that’s just wrong. I need a phone to work, and I never carry it with me. I leave it at work. If you need to reach me outside normal work hours, my work phone will redirect to my home (with a special ring). I use an iPod Touch for appointments, etc. There are plenty of ways not to have the burden of a phone and still run a business. And yes, my iPod is protected and no, I don’t use it to waste any previous spare time on social crap, so I guess that makes me safe(r).
Encryption
And you dare call people stoopid? Hahaha.
Re:
Nice to see everyone that doesn’t agree with you is stupid. You must hate the world… or is it the other way around? …
Well...
Actually… Answer: Don’t don’t care as much as you’d like to think they do. They DO go through the data, why ohn earth would pedophiles be on their priority? Does that round up the end of the month? If anything, it costs more. I think Mike showed us numerous times what their priorities were. You should read Techdirt, it’s nice sometimes.
Scary
This is a huge over-extension of the right for law enforcement to conduct a search. Does this apply to stop-and frisk searches too? What about your I-Pad or I-pod touch? Can they search that as well. Smart phones have email….does this extend to emails? There is undoubtedly an expectation of privacy for emails. This is scary.
Regardless, someone better appeal. I could see this issue going up to the Supreme Court.
Encryption
> your failure to unlock it then could result
> in a contempt of court charge
Well, if I’m a bad guy and I know my phone has stuff on it that will incriminate me, contempt is likely to be the lesser of the two punishments.
A few days/weeks in the county jail, versus a couple years in the state penn? I know which I’d choose.
Besides, you could always claim you forgot it. No court order can compel your memory to be accurate. And the state has the burden to prove an obstruction charge beyond a reasonable doubt, so they’d have to *prove* you’re lying, not just suspect it.
Then there’s also the matter of dummy passwords, which you set up just for that kind of situation. You set one password to “open” your phone or laptop and only display innocent stuff and a second password to give access to everything else. When the cops demand you open your phone, you give them the first one and they have no way of knowing there’s all sorts of other stuff in there.
You can also set a password to completely wipe the device, so when they demand you give them the password and they enter it, it erases everything.
PC
> As soon as the police have probably cause (and
> that can be anything) they can search the whole
> car.
First of all, there’s no such thing as “probably cause”. The actual term is “probable cause”.
Second, probable cause doesn’t allow the police to search. That’s only the first step in the process. After the police have PC, they then have to take that PC to a judge for review. If the judge agrees that the PC is valid, he/she will issue a warrant and only *then* can the police conduct their search.
Well...
> NSA/TSA/DEA/CIA/FBI/DHS and many more I’m sure
> have the mainline tap right into the core routers
> on the internet
Perhaps. But SGT Smith of the Des Moines PD does not. Nor does he have any way of accessing NSA data– because those intelligence agencies aren’t in the habit of making their processes available to local police for the prosecution of drug crimes, robberies and the like.
My Views
> You seriously think that the police are going
> to give you back a wallet with a joint tucked
> away in it?
Marijuana is contraband per se. Cell phone data is not.
I have a question
> No.
There have been federal court decisions that have ruled that defendants cannot be compelled to provide password data to the police. Others have ruled that they can be compelled. The courts at various levels, state and federal, are in conflict on this issue.
Your blanket “no” is rather simplistic, uninformative and inaccurate.
Re:
What constitutes “obstruction” or “refusing a lawful order” is defined by the legislature have jurisdiction drafting the law.
My Views
Cell phone data could be and that’s the point. They can search to see if it does contain evidence of a crime.
Re:
As soon as the police have probably cause (and that can be anything) they can search the whole car.
Negative. A police officer cannot search the car without a warrant. The only exceptions to this rule are: A) the police officer asks for permission to search the car and it is granted (however, it can be revoked at any time and the police officer must stop,) B) when the evidence is in plain sight (such as the loaded hand-gun lying on the front seat,) or C) when the person is under arrest and the car is to be impounded, then the police officer can take “inventory” of the contents of the car to assure that nothing is lost by the towing company. A police officer cannot search the vehicle just based on probable cause (Search and Seizure 101…)
For the most part, they ask permission.
Which can be declined at any time…and, most including myself would argue that it *should* be declined…if there is enough probable cause, the police can easily get a warrant.
Declining permission will often get the car seized until a search warrant is issued.
Negative. A police officer cannot seize anything without a warrant, and this includes a car. The officer may detain you while a search warrant is obtained, or if they have enough cause to arrest you, they may be able to get into the car to inventory it, but they have to have enough cause to arrest you first. They cannot arrest you without cause and then search the car to find that cause…otherwise the evidence will be dismissed as unlawfully obtained. If they have probable cause to arrest you, then they can inventory the car (which, according to the Supreme Court, isn’t a search even if its result provides further evidence or evidence of other crimes.)
Basically, the officer states the reason for this probably cause and asks permission to search the car. If that is declined, he may in fact detain the driver (and passengers) until such time that a warrant is issued. The car could also be impounded pending that.
A police officer must have reasonable suspicion in order to detain for a traffic stop. They cannot just pull people over without cause. Detention is temporal, and a police officer can only detain someone long enough to determine whether a crime has been committed and whether there is enough cause to arrest the individual they are detaining for the crime. Warrants take seconds via a phone call to the duty judge….and most police officers would rather have a legal search and seizure than have to deal with the ramifications of allowing a guilty man go free because they screwed up in obtaining evidence.
Scary
No, the laws relating to stop-and-frisk searches (a Terry Stop – see Terry v. Ohio) are for weapons only.
Scary
I agree it should go before the Supreme Court because as it stands now, different states have different rulings on this topic. My state has no case law, but the CJA recommends obtaining a warrant before searching a cell phone. California’s courts apparently see things differently.
Encryption
Are you a criminal justice major? You sure sound like one.
And why would this make what he is saying any less right… I’d say someone with those credentials would have a far better opinion of how the system works than some random Joe on Techdirt.
In California, Judges beat up on police officers who bring cases before them with a single charge of obstruction. Prosecutors usually automatically dismiss them now. And the reason isn’t just for the purpose of stopping fishing expeditions, but also because some police officers have heavy badge syndrome where they feel they have to punish citizens that don’t do what they tell them to do, so they arrest them for obstruction.
And for the record, I was a computer science major, in case you wish to question my credentials. However, I also have law enforcement experience too, so do with that what you will.
Three years ago we discussed the legality of police being able to search your mobile phone without a warrant after any arrest (such as, say, following a traffic violation).
Very few traffic violations result in an arrest. Most traffic violations are detainment situations…a cop pulls you over for running a red light, they are detaining you long enough to check your documentation and look for warrants or any problem with the vehicle or paperwork, write the ticket, and send you on your merry way. As such, there is not enough cause on a traffic violation to obtain a search warrant. Even violations that rate high enough to be a misdemeanor may not warrant an arrest…most just result in the cop scratching out a misdemeanor citation. However, if it is an offense that warrants arrest, then it appears that they can search your phone.
This may still have to go to the Federal Supreme Court, but at least at this point in California, if you have a phone on during arrest, they may be able to look through it without a warrant.
Re:
This answer sounds to be both exactly right and exactly useless– unless the unfortunate arrestee happens to be a lawyer. God, don’t we all love the rule of law.
My Views
> > Marijuana is contraband per se. Cell phone data is not.
> Cell phone data could be and that’s the point.
No, cell phone data can’t be contraband. Contraband is defined by statute and includes things like drugs, counterfeit currency, basically anything that is illegal per se and whose mere possession is in itself a crime.
Cell phone data, even data that is evidence of criminal activity, is not illegal to possess and therefore is not contraband.
I have a question
I see… so in this case, depneding on where were it happened, I could’t deny to talk about anything about my phone altogether…
Maybe it isn’t that good to switch to smartphones afterall…
Encryption
well that would be violation of free speech! they cannot force you to tell them your password! remember you have a right to remain silent and then ask for a lawer……..
Encryption
and… the police compelling you to unlock your phone is just the police acting “Stupidly”….. the only reason I can see for police to check your phone is to see if you were texting and driving, but if it was locked w/password then I guess you weren’t….. easily beat in court………
Search content of cell phones
I was always told that a personal (pat down) search of your person and clothing, was for the safety of an officer(s) at a legitimate stoppage or arrest. How can the content of a cell phone be a threat to an officers physical well being?? How are ideas like this fabricated and by whom? How are rulings like this justified? It sounds like some of these people should be told to step DOWN from their respective offices and replace them with people with common sense.