Court Confirms Police Don't Need A Warrant To Do A Limited Search Of A Mobile Phone

from the lock-it-down dept

In a court ruling that came out a little while ago (just catching up now), Judge Richard Posner took the lead in an appeals court ruling that effectively reaffirmed the idea that police don't need a warrant to search mobile phones as they're arresting someone. Of course, this general concept is not new and I've discussed my concerns about police being able to search phones without a warrant in the past -- but this particular ruling does seem pretty limited. While Posner notes some of the bigger questions, he basically compares the phone to a diary, and focuses on the mere searching of basic data, like the address book, to suggest this particular search was limited, and doesn't raise any significant 4th amendment issue.
It’s not even clear that we need a rule of law specific to cell phones or other computers. If police are entitled to open a pocket diary to copy the owner’s address, they should be entitled to turn on a cell phone to learn its number. If allowed to leaf through a pocket address book, as they are, United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993), they should be entitled to read the address book in a cell phone. If forbidden to peruse love letters recognized as such found wedged between the pages of the address book, they should be forbidden to read love letters in the files of a cell phone.
Effectively, the court more or less says that circumstances matter, and that in situations where there's a chance that data will get deleted or modified, it's perfectly reasonable to do a simple search of the mobile phone, but it could get thornier if it moves more in the direction of voyeurism, rather than as evidence for crimes. I'd certainly prefer much stronger privacy protections -- especially as a phone really is a window into much, much more than just a phone, but the ruling isn't much of a surprise and seems to align with other rulings on similar issues.

Filed Under: mobile phones, police, search, warrant


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  1. icon
    Trodamus (profile), 9 Mar 2012 @ 9:00am

    I recall previous rulings about phones.

    Police are allowed to search your pockets during an arrest, as this is part of standard procedure to make sure you don't have any weapons.

    Police are allowed to use the contents of your pockets, weapons or no, as evidence.

    Past cases have said that this includes the full contents of a cellphone.

    Regarding passwords, this denies them access to your phone through your phone (for some password software). You need to verify whether it prevents them from rooting around through files anyway.

    Regardless as to the above, you might consider it worthwhile to password protect AND encrypt the contents of your phone. Recent rulings state that they need to know specifically the incriminating content they are looking for to force you to hand over the keys. If they're just fishing, these locks will hold.

    I agree with this court's ruling as it does try to limit the exposure of the smartphone data to similar real-life situations without a carte-blanche dictate that they have absolute access.

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