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The iPhone Meets the Fourth Amendment
background image writes "According to Alan M Gershowitz, the doctrine of "search incident to arrest" may allow devices such as mobile phones, PDAs and laptops to be thoroughly searched without either probable cause or warrants [PDF download below abstract]. Incriminating evidence found in such searches may be used against you whether or not it is germane to the reason for the original arrest. He notes, 'Obviously, the framers of the Fourth Amendment could not have conceived of a handheld technological device like the iPhone, and courts have not yet been called upon to answer most of the difficult questions posed by such devices.' We've discussed similar search issues recently, as well as other privacy concerns related to modern technology.
Security on the iPhone is SO bad, you may as well just give up all your privacy anyway.
It can be turned into a microphone which records everything said about it, someone can look at all your contacts and information, and good luck if you store any financial info on it, or have visited a banking website. You'd just be screwed.
But hey, when you have to whip something in in four weeks for a pointy-haired boss, that kind of stuff happens.
Like you, I expected this to be an article by the world-famous lawyer and Harvard Professor, Alan M. Dershowitz. Instead, it is an article by the South Texas College of Law Assistant Professor, Adam M. Gershowitz.
Seriously.
If they think they "may contain evidence that you can destroy" and they have arrested you, it looks like the Supreme Court has ruled yes.
I imagine you would inform them of that when you discover they intend to read/confiscate it. And then it is completely inadmissable in court. And they could not look.
(As a corallary, I bet it is illegal to lie about that to an officer in this context.)
I'd imagine those would be treated the same as medical privlidged papers.
IANAL, but I did read the article linked to in the summary on searches incident to arrest.
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That's Alan M. Dershowitz.
The author of the paper is one Adam M. Gershowitz. Not Alan as stated in the summary.
(Nor is it Adam Horovitz the Beastie Boy.)
Your ad here. Ask me how!
Lock your phone people and then provide the code when a warrant is given. Nothing is in plain view and therefore not subject to search without *consent* or *warrant*.
The fourth only protects against 'unreasonable' searches without a warrant. A search incident to a lawful arrest has been, for almost a century, been (per SCOTUS interpretation) reasonable, and requires no warrant nor consent. Weeks v. United States, 232 U.S. 383, 392 (1914): "the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases."
Or, "The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted." Agnello v. United States, 269 U.S. 20, 30 (1925)
United States v. Robinson, 414 U.S. 218. 235 (1973): A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a `reasonable' search under that Amendment."
This is pretty old stuff, every first-year law student gets this in Constitutional Criminal Procedure. I'm not aware of any SCOTUS case law directly on point, but lower courts have been applying SILA ("Search Incident to a Lawful Arrest") to electronic devices for decades, e.g., United States v. Lynch, 908 F.Supp. 284, 287 (D.V.I. 1995): "the search and retrieval of the telephone numbers from [the defendant's] pager was justified as being incident to a valid arrest, even though [the defendant] had a reasonable expectation of privacy in the contents of the pager." (Cited with approval in U.S. v. BROOKES, Crim. No. 2004-0154 (V.I. 2005).) Cellphones and pagers have been held to be akin to wallets and address books which, if on a suspect's person or within the sphere of his immediate control at the time of arrest, are fair game.
So, not exactly sure how this is news; it's certainly nothing new.
geek. lawyer.
Next time I go to the US... OK, put me on your sh* list ..... after all probably I do not want to really go anymore. But if I do,
probably I just take a hmmm. Calculator? Analogue watch?
I am sorry, but I know people who got their PDA searched, and interrogated at the border. I know people who were asked to log-in and show their contact list on their laptop computer.
I am sorry, but I do not feel like entering the US anymore with any electronic device, because I know they have the right to search, confiscate, burn and destroy anything I carry without a warrant, without asking.
I am a legit geek, and I want my laptop and phone with me on a 1. holiday, 2. business trip to anywhere. Coming from there, even being 100 percent legit I just do not want to enter the US, because I do not want to explain my contacts in my phone book, and do not want to lose my laptop, tablet, or whatever else.
What's next? My GPS? And if I have a waypoint in the middle east or south america I am a terrosirs, bomb maker, or communist suspect?
I was thinking a dive trip to Miami, but if they anal-probe my pda I better just choose something else....
I think I just let my visa expire, and maybe renew it when the US returns to its common sense. You think I am rebelling alone? Most people I know would pahy a couple extra hundred $ to go an other route to make sure they do not lose a laptop or PDA while entering the US. And they are not criminals, just IT people. Hell, the US is killing itself slowly but surely.
Even more importantly, rights are not 'granted'.
True, true, and it doesn't say it's granting the right, it says that it shall not be infringed.
The enemies of Democracy are
Someone thought they should mod this funny, but the parent poster is correct.
Dig up an unabridged Oxford English Dictionary, and check out the definition for "regulated". There are examples dating back to the 1600's that use this term when referring to a militia, although they are now considered obsolete or archaic. In the context of a militia, the most appropriate synonym for "well-regulated" in the 17th and 18th centuries would be "effective" in the 21st century.
However, the first clause wasn't intended to limit the second clause. The Congressional Record shows that a "collective" interpretation was proposed in the Senate during the debate of the Bill of Rights by adding "for the common defense" (a phrase that was in at least one of the original 13 state constitutions). It was explicitly voted down.
Tell me, what does "assault rifle" meant to you? Because, to Clinton and those who rely on people like you to be ignorant, it means "guns that look like military rifles but aren't", yet to those in the know, it has a very specific definition.
but this law would let them do it without a court order, in fact without any good reason at all.
What if Tetris was invented by Nazis?
Since when does the Federal Government have the authority to make this decision at all? The point of the Second Amendment is that the States should decide. If people in one state want to ban weapons, fine. That is their prerogative. If the people of another state want to have no restrictions, that is also fine. This is why it is called the United States (countries), and not "America" (which happens to be a continent).
I cannot see how the Constitution allows the Federal Government any say in this whatsoever.
All data is speech. All speech is Free.
A PDA, Laptop or any other similar device is simply to vast to ever consciously be aware of its contents. Also unlike a suitcase,
Well, some people have claimed that child porn got onto their computers through security exploits, with some success.
a PDA depends on an interface to inspect the contents. So it may not be possible to even inspect the whole "container" and the veracity of any statements made about the data is only as good the reputation and proper functioning of the interface.
Well, that's for judges & juries to sort out, like other types of complex evidence.
I am not deliberately attempting to be obtuse and over complicate the situation, and I am sure one might be reasonably certain that specific pieces of data were indeed placed by the owner, but is not reasonable doubt an important legal concept?
You are being obtuse. That's for judges & juries to sort out, like other types of complex evidence. This isn't the first time complex evidence appears in court.
I would say that data only exists as a dimension that is interpreted from the other 3. Data flows in this dimension from one "area" to another. There are certainly laws governing its behavior since programs are data, and they could be seen as data affecting other data. Much like pouring water on the top of a pyramid, it will flow down around it.
I know some might one to ask just what I have been smoking and how much I have smoked,
You definitely sound like you've been smoking something. Where can I get some?
Only the very sophisticated can peer into this dimension and forensically determine with any accuracy just what is what and who put it there.
So, ummm, have you ever heard of scientists and other experts testifying in court? This isn't new.
So just what data is in of itself a crime to possess? I cannot think of any.
Well, child porn & classified material come to mind. Try possessing a bible in Saudi Arabia.
Data can only indicate past crimes, and that data is in fact quite rare. I doubt any PDA's actually contain any data that could lead to convictions in the first place.
Data can indicate planning for future crimes - for example, conspiracy. Do you think the email records of all the hookers advertising on craigslist would indicate planning to commit a crime?
I find it troubling that law enforcement may use situations completely unrelated to your data to justify extensive searches of your devices.
Dude, if you are legitimately under arrest for a real crime, the police will search you. If you are carrying illegal drugs at the time, not good for you. If you are carrying illegal guns at the time, not good for you. If you are carrying child porn at the time, not good for you. If you have a backpack containing printouts of every email you wrote, they will search that too. Why shouldn't an electronic device be treated the same way? (provided the arrest is legitimate)
"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."
I think the Iphone and other such devices fall under both paper (meaning data) and effects (meaning the physical device).
I think it's pretty clear! Papers and effects are covered.
They're using their grammar skills there.