Will California's Governor Outlaw Police From Searching Mobile Phones Without A Warrant?

from the what-4th-amendment? dept

For years, we've discussed the legality of police searching the contents of your smartphone at a traffic stop. The issue is a bit complex legally. The law generally says that police can search through anything on your body, but that was generally meant for things like your wallet or other physical storage. When it comes to something like a smartphone, that contains all sorts of details about your life (and the ability to access a hell of a lot more) the questions become a lot trickier. It certainly feels like it should be against the 4th Amendment to allow such searches without a warrant -- but the courts have been mixed. Tragically, earlier this year, California's Supreme Court ruled that such searches were perfectly legal without a warrant. In response, the California legislature passed a bill, SB 914, which would require police to get a warrant.

But there's a problem: Governor Jerry Brown hasn't signed it yet.

Despite petitions and a variety of editorials urging him to sign it, he's still sitting on it (he has until October 9th). Wired is reporting a rumor that Brown has agreed to veto the legislation in an effort to please the "law enforcement lobby."

As the Wired article notes, the law itself is already pretty weak, allowing law enforcement to ignore the warrant requirement under vaguely defined emergency circumstances. It also doesn't require any official reporting of such uses where the warrant requirement is ignored, meaning that such an exception might be abused. But it certainly takes things a big step in the right direction concerning an individual's right to privacy. Hopefully Governor Brown recognizes this and signs the bill.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Anonymous Coward, Sep 26th, 2011 @ 7:26am

    If you had a box of documents on your front seat that "contains all sorts of details about your life", it would be absolutely and clearly legal for the police to search it.

    Putting that same information into a smart phone (or laptop for that matter) and putting that device in the same place on the seat doesn't magically make it disappear.

    The question of "and the ability to access a hell of a lot more" is moot, because the right to search doesn't extend past what is in the car itself. Police can not, by extension, go and search your home as a result of a traffic stop, nor can they go online to download information that is not present in your cell phone or laptop. For this, you appear to be playing a bit of a FUD card. The police aren't trying to get access to your facebook account on a traffic stop, but they should have the rights to whatever is in arms reach.

    If you choose to carry around a "virtual box of files" on your person, you are taking that risk. The choice is yours.

     

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      Nathan F (profile), Sep 26th, 2011 @ 7:36am

      Re:

      An unlocked box of documents is in plain sight thus they can search it. A smart phone that has a passcode lock has information that is not in plain sight. If they have to get a warrent to crack a safe or locked box then they have to get a warrent to pass the locking code on your smartphone.

       

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      Chronno S. Trigger (profile), Sep 26th, 2011 @ 7:39am

      Re:

      They can search any unlocked container within easy reach of the driver. A locked cell phone is not an unlocked container. A cell phone also has nothing to do with a standard search. You can't hold alcohol in it, you can't hold weed, you can't hold fake IDs, you can't hold weapons. There is absolutely no logical reason for a cop to be searching your phone.

      The major problem with your box of files analogy is that they don't search the box of files for information about you, they would search it for what I previously mentioned (hidden drugs, weapons). They also don't make an exact copy of your box of files and take it back to the police station to more thoroughly search threw them.

       

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      Another AC, Sep 26th, 2011 @ 7:40am

      Re:

      "The police aren't trying to get access to your facebook account on a traffic stop, but they should have the rights to whatever is in arms reach."

      But that's EXACTY what they are doing! Most people have FB on their phones these days, what is to prevent an officer from searching that on your phone?

      As usual, the only FUD seems to be coming from you.

       

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        Anonymous Coward, Sep 26th, 2011 @ 7:57am

        Re: Re:

        Please... show me a link that this has happened.

        Not just "they looked at what facebook left on the phone" but the actual officer going through, connecting online with facebook, and reviewing the contents of the facebook account during a traffic stop.

        Stop with the FUD, you know this isn't happening.

         

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          identicon
          Another AC, Sep 26th, 2011 @ 9:07am

          Re: Re: Re:

          The point, as you usually miss, is that they CAN, therefore at some point they will. I find it funny that you don't believe they will because I don't have a specific scenario where they have done it once, but you don't see the problem with believing they won't ever do it despite the same lack of evidence.

          The funny thing is, we can't know one way or the other, yet you seem to strongly believe one way over the other... sounds like FUD to me :)

           

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            Anonymous Coward, Sep 26th, 2011 @ 9:38am

            Re: Re: Re: Re:

            Oh come on. You stated "But that's EXACTY what they are doing!". When I ask for an example, you don't have any. Talk about FUD.

            The "can" almost anything, but the question is "does it hold up in a court of law"? What is on the internet isn't clearly in arms reach, it is far away, and you have to take action to make it come to you. I can't see anything download via a device during a traffic stop getting a nod from the courts.

            So, are you just spreading FUD, or do you have an actual example you want to share with us? Remember, "But that's EXACTY what they are doing!".

            Show us.

             

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              Another AC, Sep 26th, 2011 @ 10:19am

              Re: Re: Re: Re: Re:

              Done:

              http://www.thetruthaboutcars.com/2011/04/michigan-police-search-cell-phones-during-traffic- stops/

              What's worse, they extract deleted information from the phone as well!

              Your move.

               

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                Anonymous Coward, Sep 26th, 2011 @ 10:33am

                Re: Re: Re: Re: Re: Re:

                Sorry, you failed.

                We all know already that they can access the phone (and copy it using available tools). You still have not shown them going online and accessing the guys facebook account.

                Everything that they did there was copying what was on the phone itself, which was in arms reach. They did not go online.

                Try again.

                 

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                  Another AC, Sep 26th, 2011 @ 10:55am

                  Re: Re: Re: Re: Re: Re: Re:

                  Actually, I took your facebook comment to mean one example of going "online to download information that is not present in your cell phone or laptop". That said, text messages, GPS data, all of those are downloaded then captured so... I stand by my comment.

                  Are you saying that a court would/should allow text messages, but not if one is downloaded *during* the traffic stop? GPS data is ok unless it's during the traffic stop? Remember, it's all downloaded! Where is the line exactly?

                   

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              Josh in CharlotteNC (profile), Sep 26th, 2011 @ 10:20am

              Re: Re: Re: Re: Re:

              What is on the internet isn't clearly in arms reach,

              Since I got a smartphone, the entire internet is within reach practically 24/7.

              Show us.

              You first. You're big on talk, but never have you supplied evidence. Never. Not once. Put up or shut up.

               

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                Anonymous Coward, Sep 26th, 2011 @ 10:34am

                Re: Re: Re: Re: Re: Re:

                Josh, seriously?

                What am I going to show? An empty police car, or maybe a policeman not checking a cell phone?

                Grow up, will you?

                 

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                  Another AC, Sep 26th, 2011 @ 10:56am

                  Re: Re: Re: Re: Re: Re: Re:

                  One more time:

                  The funny thing is, we can't know one way or the other, yet you seem to strongly believe one way over the other... sounds like FUD to me :)

                   

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                    Anonymous Coward, Sep 26th, 2011 @ 12:00pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    I am only a big believer that putting something onto a cell phone or a laptop doesn't suddenly grant it more protections that a piece of paper in an envelope. If the rule is "within drivers reach" then that is what we work with.

                    Those who bring up the "but they could use it to go on the internet" argument fail because it is clear that in any court case as a result, there would be a question of the source of the evidence. If the police say "I used the guy's cell phone to access his company's network and download the files from his personal, password protected storage area on the company servers", it is very likely that the evidence will be thrown out, because none of those things was within arms reach.

                    In that regard, a cell phone is like the keys to someone's house. They can look at the keys, they can exmine them, but they cannot use them to unlock the door of his house and go have a look around. Understanding that simple difference explains where I stand in this case.

                    You made a direct statement of what police were doing, but when asked to back it up, you offered up a link to significantly less than what you claimed.

                    Do you have any evidence that police are using cell phones to access the internet during traffic stops? Or are you full of shit?

                     

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                      identicon
                      Another AC, Sep 26th, 2011 @ 3:06pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      "You made a direct statement of what police were doing, but when asked to back it up, you offered up a link to significantly less than what you claimed."

                      But what I claimed and what the link showed are both entirely correct, see my earlier post you ignored :)

                      How much more do you need? You ask for evidence, it's provided, and the best you can counter with is "I disagree, therefore you are wrong"...

                       

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                      Anonymous Coward, Sep 27th, 2011 @ 5:24am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      it doesn't matter...the California Supreme Court Justice totally thumbed his nose at the Constitution when he issued his ruling:

                      "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

                      "...their persons, houses, papers, and effects." those are the key words of the 4th amendment: persons, houses, papers, and effects.

                      MY cellphone is just but one of my effects(along with my vehicle). And, according to the 4th Amendment, falls under its protection and, therefore, a warrant is required. IS required. not "should be" or "oughta be". IS required.

                      This message is brought to you by the 4th Amendment.

                       

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                        Chad, Jan 5th, 2012 @ 1:01pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        Thank you! It is as black and white as he just stated it. It's black and white in the damn constitution. The judges ruling is unconstitutional. He misused his ability or lack of to infer a meaning froma previous courts decision that had absolutely no prsedence in his court hearing. He should be removed from the court for his obvious corruption.
                        The rest of you who are arguing to the contrary are morons and I have never heard such crap come out of anyone's mouth as to try to argue their side. Jogging and have a heart attack. Really!? You are dumb!

                         

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    •  
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      Prisoner 201, Sep 26th, 2011 @ 7:43am

      Re:

      "If you choose to carry around a "virtual box of files" on your person, you are taking that risk. The choice is yours."

      Yes there is a choice. But is it a realistic choice?

      Sure, I could use a cell phone with no features what so ever and keep all phone numbers in my head. But really?

       

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      That Anonymous Coward (profile), Sep 26th, 2011 @ 8:07am

      Re:

      Police can not, by extension, go and search your home as a result of a traffic stop


      Have you never watched an episode of 'Cops'?
      You have officers curious about what the people in the car are doing, and pull them over for a 'traffic offense'. They then engage them in discussion, and then want to search the car.
      The if they found 200 pounds of pot hidden in the trunk, you suggest they would have no interest in searching the home of the people they pulled over.

      Allowing them to examine the phone, read texts, emails, look at pictures, etc. is invasive into a persons life and has nothing to do with the 'traffic offense' they were pulled over for allegedly committing. Giving them the ability to go on a fishing trip through a persons life, simply for the officer pulling them over for what he felt was a rolling stop, is hugely overreaching.
      We have companies selling machines that download the entire contents of a phone, protected or not, and some agencies using them. They claim they would never use it on a standard traffic stop, but without oversight we all know where this often leads.

      Being able to go through a persons phone for having a tail light out seems like it might be going to far. But then we have a society full of fear that if we can't look at the bad peoples phones we might miss a terrorist, but they often never consider what happens if that law is used on them because they are "good people".

      I suggest that the Governor hand his smart phone(s) over to officers first, so he can understand exactly what this law allows. The legislature seems to have an issue with this, and acting on the concerns of the people have moved to amend the law the Governor has allegedly decided that the police having expanded powers is more important than the people's right to privacy.

       

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        Anonymous Coward, Sep 26th, 2011 @ 9:40am

        Re: Re:

        " if they found 200 pounds of pot hidden in the trunk, you suggest they would have no interest in searching the home of the people they pulled over."

        They have no interest to search the home of people they pull over unless what they turn up during the traffic stop provides the probable cause to go to a judge and get a warrant.

        "Being able to go through a persons phone for having a tail light out seems like it might be going to far"

        Yet, they can go through an open box of documents sitting on the seat next to the driver. Isn't this just the electronic version of that file box? Is making the files digital somehow make them disappear?

         

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          ComputerAddict (profile), Sep 26th, 2011 @ 9:58am

          Re: Re: Re:

          The Problem is it's not a cardboard "File box in the next seat" it is a 400 pound Sentry Safe that's locked in your passenger seat. And even the officers on COPS would need a warrant before calling in the safe cracker.

           

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      MonkeyFracasJr (profile), Sep 26th, 2011 @ 9:10am

      "Right to Search"

      You may see this as "nit-picking" or semantics, but I have a problem with the phrase "the right to search". It may seem like a small difference in words but it is a huge difference in meaning.

      I do not believe it is a right, ever. Officers may have the authority and legal grounds to conduct a search, they may be said to be 'in the right' or it may be permissible for them to conduct a search. But it is not their "right".

       

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      identicon
      Anonymous Coward, Oct 7th, 2011 @ 10:42am

      Re:

      If you have a box in your front seat and it says "contains all sorts of details about your life," it is not "absolutely and clearly legal" to perform a warrantless search. http://en.wikipedia.org/wiki/Arizona_v._Gant

       

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  •  
    identicon
    Anonymous Coward, Sep 26th, 2011 @ 7:30am

    is there a way to encrypt your phone to keep them from mounting it? I use the pattern to unlock feature but I guarantee that they have some piece of hardware that will just rip the file system bypassing any locks.

     

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      Chronno S. Trigger (profile), Sep 26th, 2011 @ 7:53am

      Re:

      (Going from memory here) I know BlackBerrys can support OS level encryption, and I think that the iPhone and newest version of Android (3.0 or higher) can as well. But, it doesn't help since when the phone is on the key is in active memory to decrypt the drive as you use it, thus they can just go around the encryption.

      Encryption is only good if you decrypt only when you need it (so they key doesn't stay in active memory) or if the physical drive is stolen (damn good reason to encrypt right there).

       

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        chris (profile), Sep 26th, 2011 @ 8:12am

        Re: Re:

        But, it doesn't help since when the phone is on the key is in active memory to decrypt the drive as you use it, thus they can just go around the encryption.

        why can't you just turn your phone off when you get pulled over?

         

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          Chronno S. Trigger (profile), Sep 26th, 2011 @ 8:15am

          Re: Re: Re:

          Unless there's a boot password (There may be, I haven't played with it myself), it automatically mounts the encrypted drive.

           

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  •  
    identicon
    whisk33, Sep 26th, 2011 @ 7:56am

    Syncing accounts are in the car

    Smart phones are constantly syncing account. My gmail is on my phone, not stored there however. Can they, through my phone access whatever they'd like? Am I expected to fund their investigation through charges on my cell phone? (though small, principle seems to stand out). Access my home computer through VPN software? Work computer? Are they limited to access? Can they delete? What if they accidentally delete something?


    It almost makes you wish there was a civil anti-hacking law that the people could abuse against officials.


    "locked" is also an interesting word... does sliding a bar to the right count as a lock? what about a required pattern? Could you be charged for hindering an investigation by not providing the pattern?

     

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      ComputerAddict (profile), Sep 26th, 2011 @ 10:02am

      Re: Syncing accounts are in the car

      "Could you be charged for hindering an investigation by not providing the pattern?"

      IANAL far from it actually, but I think your right to remain silent, and your 5th amendment right not to self-incriminate should protect you on this matter

       

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        identicon
        teka, Sep 26th, 2011 @ 9:53pm

        Re: Re: Syncing accounts are in the car

        And, as many cases have proven, the Judge is then free to consider you "in contempt of court" and lock you up for a week. Week passes in the worst levels of the county jail, then you can come back and they will say once again "please enter the passcode".

        Maybe you can get Two weeks the second time! Oh! Or a month!

        Meanwhile your silence will be handed off to another judge as reasonable suspicion of.. well, Anything. Wonder what else they can do to you, and the secured device/file/system at that point?

         

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    identicon
    Kami, Sep 26th, 2011 @ 8:39am

    So this governor is bending over backwards and kissing the ass of the police to gain favor with them instead of the citizens who voted him in? What is he still doing in office? I say vote him out if he doesn't want to support and violate people's rights.

     

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    identicon
    Anonymous Coward, Sep 26th, 2011 @ 8:51am

    I'm very much in favor of placing reasonable restrictions on law enforcement and other government agencies (e.g. TSA) where it comes to the right to search electronic devices such as smartphones and laptops. But as I was reading this article I was suddenly thrown for a bit of cognitive dissonance.

    Frequently when I go out jogging or biking for exercise, the only things I carry with me are a key to get back into my house, and my cellphone. No wallet or any other ID. Part of my reasoning is that if something happens like I have a heart attack or get hit by a car, the cellphone has enough information about me that any authorities who respond to the scene would be able to look at it and know who I am within a couple of minutes. If I'm unable to properly communicate and obviously in urgent need of medical care, it would be most unfortunate if the authorities were bound by a law that says they are not allowed to touch my cellphone without getting a search warrant.

    As I said, I'm all for laws that prevent the authorities from exercising their powers in ways that represent an unreasonable invasion of privacy, but we need to be careful that we don't overly restrict them in other kinds of situations where such access may be important.

     

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      identicon
      Anonymous Coward, Sep 26th, 2011 @ 9:08am

      Re:

      Of you could, you know, carry an ID if you're really THAT concerned about it.

       

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      Robert A. Rosenberg (profile), Sep 26th, 2011 @ 9:45pm

      Re: Cell Phone Searching in an Emergency

      Anonymous Coward on Sep 26th, 2011 @ 8:51am posted "Part of my reasoning is that if something happens like I have a heart attack or get hit by a car, the cellphone has enough information about me that any authorities who respond to the scene would be able to look at it and know who I am within a couple of minutes. If I'm unable to properly communicate and obviously in urgent need of medical care, it would be most unfortunate if the authorities were bound by a law that says they are not allowed to touch my cellphone without getting a search warrant."

      AC is confusing two separate types of searches. He states that he is not carrying any ID except for that on the Phone. Lets say that he DOES have ID. Does he want the police to refrain from looking in his pockets or fanny pack for an ID? There is no difference between looking in your pockets for ID and looking on your Cell Phone Address Book for an ICE (In Case of Emergency) number (or other entries with likely nicknames like Mom or Dad) in this type of situation. This is a case where the Police SHOULD be able to look there and in your pockets.

      The law is for cases where there is no need to do an unauthorized search or fishing expedtion unrelated to why they are interacting with you (ie: To issue you a Ticket for a traffic offense or at a DWI/etc. check point).

       

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        identicon
        Anonymous Coward, Sep 26th, 2011 @ 10:54pm

        Re: Re: Cell Phone Searching in an Emergency

        I'm pretty sure that an emergency would reduce their need for a warrant. For example, the police cannot normally enter your house without a warrant; but if they are passing by and happen to hear you choking to death, they can still enter.

        As to the article: I fail to see why the police need to be searching data on the cellphone during a stop. An exception would be if the person were accused of driving while texting, or a similar offense, where the cellphone itself might be evidence. But if it's not evidence and not a threat to the officers, why search it?

         

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      Robert A. Rosenberg (profile), Sep 26th, 2011 @ 9:46pm

      Re: Cell Phone Searching in an Emergency

      Anonymous Coward on Sep 26th, 2011 @ 8:51am posted "Part of my reasoning is that if something happens like I have a heart attack or get hit by a car, the cellphone has enough information about me that any authorities who respond to the scene would be able to look at it and know who I am within a couple of minutes. If I'm unable to properly communicate and obviously in urgent need of medical care, it would be most unfortunate if the authorities were bound by a law that says they are not allowed to touch my cellphone without getting a search warrant."

      AC is confusing two separate types of searches. He states that he is not carrying any ID except for that on the Phone. Lets say that he DOES have ID. Does he want the police to refrain from looking in his pockets or fanny pack for an ID? There is no difference between looking in your pockets for ID and looking on your Cell Phone Address Book for an ICE (In Case of Emergency) number (or other entries with likely nicknames like Mom or Dad) in this type of situation. This is a case where the Police SHOULD be able to look there and in your pockets.

      The law is for cases where there is no need to do an unauthorized search or fishing expedtion unrelated to why they are interacting with you (ie: To issue you a Ticket for a traffic offense or at a DWI/etc. check point).

       

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    Daddy Warbucks, Sep 26th, 2011 @ 11:05am

    Duh, Dems R Big Govt

    Dems used to fight The Man! Now they are The Man!

    Dems want big Govt to rule your life, that's the Progress agenda. The Nanny State is their way to "Protect You from Yourself," and crush your Constitutional Rights to grow their influence.

    California is rank with Govt Unions run amuck. Socialization of Risk is their motto and your Individual Rights listed in the Constitution are "in their way."

    My favorite is their need to dictate what can you ingest because Big Govt is going to be paying your future Medicare bill.

     

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    unecessaryEvil, Sep 26th, 2011 @ 5:59pm

    ...

    When are people going to wake up and realize that there is no difference between Republicans and Democrats? Jerry Brown is no different from Arnold Schwarzenegger, only difference is, he's older and doesn't have an accent. Other than that, they're practically indistinguishable. Both are gun-grabbing, quasi-socialist, liberty-hating mobsters, who use the stroke of a pen to force people to comply to tyranny.

    Look what Brown recently just passed - the "Amazon Tax", forcing out-of-state online retailers to charge tax to California residents; how they got the authority to tax out of state lines is beyond me, just more fruitiness from the crazy people in California's legislature. The power to tax is the power to destroy, even our own Supreme Court has said this before.

    Again, meet Jerry Brown, same as the old boss...

     

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    Thomas (profile), Oct 1st, 2011 @ 1:36pm

    Someone would be proud...

    namely Himmler and his long gone cohorts from the Gestapo. We are in far more danger from our own "cops" than from Al Qaeda, the Taliban, and all the Islamic Jihadists in the world. When was the last time a terrorist tasered and beat the crap out of a citizen in the U.S.? Or pepper-sprayed an innocent bystander?

    We move towards a time when no one should trust any cop.

     

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    Ericweedhub (profile), Jun 21st, 2012 @ 7:53am

    There should be a clear law as to what should be allowed for inspection.Just like law about cannabis,there isn't a strong law protecting patients using cannabis.People should also be educated on the medical uses for marijuana.

     

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    identicon
    Darthimator, Feb 16th, 2014 @ 5:12pm

    Stay Logged Out

    If you stay logged out of all online accounts on your phone, it solves a lot of this. If someone steals my phone, I don't want them getting into everything either.

     

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