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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Filed Under: mobile phones, searches, warrants

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  1. identicon
    Dan, 14 Jan 2009 @ 10:40am


    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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