Cell Phone Searches Require Warrant

schleprock63 writes "The Ohio state supreme court has decided that a cell phone found on a suspect cannot be searched without a warrant. The majority based this decision on a federal case that deemed a cell phone not to be a 'closed container,' and therefore not searchable without a warrant. The argument of the majority contended that a cell phone does not contain physical objects and therefore is not a container. One dissenting judge argued that a cell phone is a container that simply contains data. He argued that the other judges were 'needlessly theorizing' about the contents of a cell phone. He compared the data contained within an address book that would be searchable." The article notes that this was apparently the first time the question has come up before any state supreme court.

Comments

Not not?

[Hatta]

Either submitter has their double negatives mixed up, or I'm really confused here:

The majority based this decision on a federal case that deemed a cell phone not to be a 'closed container,' and terefore not searchable without a warrant

Does that mean that a "closed container" is searchable without a warrant? How can that be deemed reasonable?

Re:Not not?

[Anonymous Coward]

Seconded. We nead clarification, especially since the majority can't even RTFA.

Re:Not not?

[interkin3tic]

I was confused about that too. It does appear from TFA that a closed container is searchable without a warrant.

So... anything besides a closed container requires a warrant or what? I'm assuming an "open container" would not require a warrant. Then again, I usually find logic has no place in the legal system.

I'm also confused about the case. Was the searching the cell phone superfluous to the case? TFA states the defendant answered the phone when a coke user acting as informant called and then police searched it. Is it somehow against the law to answer the phone? Like maybe he was under probation and barred from talking to his old clients or something?

Re:Not not?

[Pentium100]

IANAL, but maybe if they found some sort of a closed box on the suspect, the police could open it to see if there is, for example, a gun inside.

Re:Not not?

[IndustrialComplex]

Does that mean that a "closed container" is searchable without a warrant? How can that be deemed reasonable?

If I had a 4 liter tin cookie can when I was arrested, it could potentially contain knives, guns, maybe even a bomb. It is reasonable for a police officer to be able to search such a container when they take you into custody. It could be dangerous.

That is what they mean by a closed container. A cell phone cannot contain a physical dangerous object within its data.

However, if the police suspected that the phone was just a shell and contained bullets instead of a battery, they might have authority to search it for bullets, but that doesn't involve turning it on and going through the data.

Re:Not not?

[Monkeedude1212]

I was confused about that too. It does appear from TFA that a closed container is searchable without a warrant.

Really? That seems a little backwards, I mean obviously an open container wouldn't require a warrant to search because you don't really have to DO anything to search it, just peer in its direction.

But then basically that makes it sound like a container, regardless of its condition, is searchable without a warrant, so it makes no difference whether judges would argue if a phone is a container or not.

Unless of course, by logic, an Open container must have a warrant to search it, which explains why judges are wondering if a phone is a container and whether its considered closed.

Therefor, by logic, it is absolutely retarded that a closed container does not require a warrant but an open container does.

Re:Not not?

[click2005]

Wouldn't that allow them to open almost anything in these times when 100ml of liquid or a nail file could be and sometimes are considered weapons?

Re:Not not?

[Drasham]

From the article:

The trial court admitted the call records and phone numbers, citing a 2007 federal court decision that found that a cell phone is similar to a closed container found on a suspect and therefore subject to search without a warrant. Smith was convicted of all charges and sentenced to 12 years in prison.

A state appeals court upheld the trial ruling in a 2-1 decision. The dissenting judge based his opposition on a different federal court case, which found that a cell phone is not a ''container'' as the term had been used previously.

It sounds to me as if the article itself is worded ackwardly.
later in the article Supreme Court Justice Judith Ann Lanzinger is quoted saying:

''We do not agree with this comparison, which ignores the unique nature of cell phones,'' Lanzinger wrote. ''Objects falling under the banner of 'closed container' have traditionally been physical objects capable of holding other physical objects. Indeed, the United States Supreme Court has stated that in this situation, 'container' means 'any object capable of holding another object.'

''Even the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container,''

A simple solution to the everyday person should be to use the pin feature available in most, if not all, modern cell phones to prevent _casual_ inspection by anyone who picked up your device.

Re:Not not?

[Monkeedude1212]

Ah - see now THAT makes more sense. Thank you for clarifying - I feel like an idiot for posting rants up above.

Re:Not not?

[shentino]

I'd think that answering a call from a client would constitute probable cause anyway.

Re:Not not?

[clone53421]

From TFA (all emphasis mine):

A state appeals court upheld the trial ruling in a 2-1 decision. The dissenting judge based his opposition on a different federal court case, which found that a cell phone is not a “container” as the term had been used previously.

Writing for the majority in Tuesday’s ruling, [state] Supreme Court Justice Judith Ann Lanzinger ... said the majority didn’t agree with the state’s argument that a cell phone was akin to a closed container.

The state won the case in the appeals court – but the judge who sided with Smith in that court argued that the cell phone was not a “container”.

Smith won the case in the state Supreme Court – and once again, the judges siding with Smith accepted the idea that the cell phone was not a “container”.

So, what’s the significance of a “container”? We’ll dig further.

http://www.sconet.state.oh.us/PIO/oralArguments/09/0915/0915.asp#081781

ISSUE: When a criminal suspect has been taken into custody and his cell phone has been lawfully seized by police incident to his arrest, do police officers violate the defendant’s Fourth Amendment right against unreasonable searches and seizures by conducting a warrantless search of the electronic files stored in the cell phone?

In this case, [attorneys for Smith] point out, the search of Smith’s phone was conducted hours after he had been taken into custody and his phone had been in the secure possession and control of the police. Under those circumstances, they assert, the phone search was not “incident to” Smith’s arrest and therefore required a warrant. Rather than functioning as a “container” like a box or bag, they assert that current-generation cell phones are much more analogous to personal computers, in which their owners store a wide range of electronic information of a personal nature for which they have a strong expectation of privacy, and which courts have held may not be searched by police without first obtaining a warrant.

Attorneys for the state argue that the trial court and court of appeals properly followed earlier court decisions holding that a closed “container” that was on the person or in the immediate control of an arrested person at the time the arrest is made is subject to search without a warrant. They note that state and federal courts have held that the contents of a woman’s purse or a man’s wallet are subject to a warrantless search incident to an arrest, and argue that the contents of a cell phone should enjoy no greater protection or expectation of privacy than those items.

Re:Not not?

[endymion.nz]

Closed container = the thing you keep your weed in. Cops are allowed to look in it without a search warrant.

Re:Not not?

[clone53421]

a closed container is searchable without a warrant

Correct.

[searching] an “open container” would not require a warrant

Also correct.

Re:Not not?

[HTH NE1]

IANAL, but maybe if they found some sort of a closed box on the suspect, the police could open it to see if there is, for example, a gun inside.

I believe that's for the safety of the officer. Cell phone data though is not an imminent threat to anyone. At most they could disassemble the phone physically such as removing its battery, but that should not extend to the data on the phone.

This is often why an officer will walk you around your car so that the whole car can be seen as being within your reach giving them authority to search for weapons.

It sounds like the officers in this case were seeking confirmation of the phone call of which they monitored the other end with their informant, but forgot to or could not get a warrant for the phone or the records from the phone company beforehand. Or seeking to ID a suspect by making a call to the phone and have the phone confirm the call and thus the ID, seeking an exigent circumstances exception before the suspect ditches the phone or clears the memory.

I wonder if it matters whether or not it is a flip-phone or had a locked control panel/screen.

Re:Not not?

[Anonymous Coward]

I'd be perfectly happy if nothing was ever searchable for any reason without a warrant. If there is a reasonable suspicion that someone has committed a crime, then getting a warrant should be no problem. If there is no such reasonable suspicion, then there should be no search.

Arrange that, then tell our legislators that "if your law requires a police state to enforce, it's a bad law." Then we can end this miserable failure of a War on (some) Drugs and get our 4th Amendment back.

Re:Not not?

[clone53421]

That’s three different courts... the trial court, the appeals court, and the state Supreme Court. They could, perhaps, have been a little clearer on this significant fact, but once you understand that they were three separate courts it makes perfect sense.

The trial court admitted the evidence and convicted Smith.

The appeals court upheld the trial ruling on a 2-1 decision in favor of the state, with the lone dissenting justice arguing that a cell phone is not a “container” and thus not subject to search.

The state Supreme Court overturned the appeals court’s ruling by a 5-4 decision in favor of Smith, on the basis that (as was claimed by the dissenting justice in the trial court) the cell phone was not a “container”.

Re:Not not?

[causality]

Wouldn't that allow them to open almost anything in these times when 100ml of liquid or a nail file could be and sometimes are considered weapons?

I think that's the idea. We already have so many laws on the books that each citizen routinely breaks at least some of them some of the time. To complete this, now anything and everything is a "weapon" anytime an official needs an excuse to search you. The reason why you have basically unenforcable laws like this, is so that you can enforce them anytime you want against anyone. I'm sure it's quite "handy" for political opponents or anyone who is an outspoken critic or otherwise a nuisance to whoever is in power or is otherwise well-connected.

We have this situation because the average American is a hell of a lot more concerned about football, the Top 40 charts, and American Idol than they are about their own freedom and well-being. That saying about how our system causes us to get the government we deserve probably has some truth to it.

Re:Not not?

[Anonymous Coward]

I think the editors should go ahead and append this comment to the end of the summary...nicely done.

Re:Not not?

[Anonymous Coward]

> If I had a 4 liter tin cookie can when I was arrested, it could potentially contain knives, guns, maybe even a bomb. It is reasonable for a police officer to be able to search such a container when they take you into custody. It could be dangerous.

Yeah, and you could also have a hand grenade up some orifice where the sun don't shine. You're going to suggest they search there without a warrant as well, right?

Re:Not not?

[wealthychef]

There are other objects in the universe besides containers, whether open or closed. Obviously an open container is searchable, generally by trivial inspection. A closed container can be searched if it's incidental to an arrest (as opposed to arbitrarily at the officer's whim), but apparently a cell phone is like a laptop, which cannot be searched even if it appears to the officer related to the arrest.

The moral of the story: store your weed in your laptop or cell phone.

Re:Not not?

[surmak]

Attorneys for the state argue that the trial court and court of appeals properly followed earlier court decisions holding that a closed “container” that was on the person or in the immediate control of an arrested person at the time the arrest is made is subject to search without a warrant. They note that state and federal courts have held that the contents of a woman’s purse or a man’s wallet are subject to a warrantless search incident to an arrest, and argue that the contents of a cell phone should enjoy no greater protection or expectation of privacy than those items.

I guess that a reasonable standard would be to perform a physical search of the phone to insure that there is no object hidden in the phone (maybe some pills were placed behind the battery, or the like, or to insure that the device is actually a functional phone, and not a bomb contained in a phone case). An electronic search of the data is a completely different beast, and there is no reason for the arresting officer to access the data without a warrent.

On the other hand, I would hope that the same rules apply to wallets. Over the last couple of years, I have been in the habit of carrying a USB flash stick in my wallet, and if I ever got arrested (God forbid), it would be reasonable for them to search the wallet, but not to plug the flash device into a computer without a wallet.

Re:Not not?

[lazycam]

Looks like I am going to start carrying my cell in a zip lock bag. Wonder if that works?

Re:Not not?

[Anonymous Coward]

No, they goofed in the article logic. A closed container requires a warrant, as data is not in "plain sight" by simply looking at the phone.

Re:Not not?

[lyml]

If they suspect you of having an object in there can't they already do that?

Re:Not not?

[joelgrimes]

I think you're missing the operative words: incident to arrest.

They can't just stop people going about their business and demand to see the contents of their backpacks in the hopes of finding something incriminating.

Re:Not not?

[IndustrialComplex]

Looks like I am going to start carrying my cell in a zip lock bag. Wonder if that works?

The contents of a clear ziplock bag would be in plain view, and no reasonable person would have an expectation of privacy regarding the observation of such materials. An opaque or translucent ziplock bag would probably instantly cause the officer to open and inspect the bag.

I can kind of see where you are going with this one. Is this your line of reasoning? Since the cell phone was in plain view, and if there was no cause for suspicion to believe that the phone was anything other than a phone and not a shell for contraband, then opening the baggie to further inspect the phone was not necessary. Is that correct?

The arguements could be made:

Since it was plain that the phone was nothing more than a phone, the bag did not need to be opened to further inspect the phone.

The counterarguement could be made:

The bag was clear and therefore provided clear line of sight to the objects contained within, the implication is that the phone was not an item that the bearer had any intention of keeping private.

The reality:

Cop: What baggie?

Re:Not not?

[Anonymous Coward]

Either submitter has their double negatives mixed up, or I'm really confused here:

The majority based this decision on a federal case that deemed a cell phone not to be a 'closed container,' and terefore not searchable without a warrant

Does that mean that a "closed container" is searchable without a warrant? How can that be deemed reasonable?

Thank god I'm not the only one, thought the radiation for the computer monitor had finally gotten to me after i read that line 5 times trying to figure out why it didn't make sense.

Re:Not not?

[StikyPad]

That saying about how our system causes us to get the government we deserve probably has some truth to it.

Yes, people always get the government they deserve, because governments cannot exist without consent of the governed. Tyranny would seem to be an obvious exception, but it's really not. If the people don't overthrow tyranny, then they are implicitly accepting it. A government may put down insurrections, even successfully, but if that fails to incite *even more* insurrection, then again, the people are complicit in their own oppression.

Re:Not not?

[nospam007]

Seconded. We nead clarification, especially since the majority can't even RTFA.

We can, we just won't.

Re:Not not?

[KC7JHO]

Ok, first off, I am a Police Officer in the state of Oklahoma (I know each state is different...) so with that being said, the search of a closed container during an arrest is for safety/inventory purposes.

I have never even thought I had a right to examine the contents of the phone past the initial screen (no pushing buttons, etc) OR a flash drive with out a warrant. Even when I server a search warrant on a house to retrieve and search electronic storage devices I must always specify that I will be searching the contents of every object found including any phones, disk, computers, cameras, etc. If, during my warranted search I find evidence of the suspect using an online e-mail service (I.E. g-mail) I must again obtain a warrant for this service as well. This is to protect the peoples right to freedom of speach. If I can not convince the judge that the suspect was using the service to conduct illegal activity pertaining to my previous warrant then the Judge will not grant my warrant. In my opinion this is perfectly logical!

If I am arresting some one for suspicion of dealing narcotics, I can justify a warrant on the phone to look for contacts, messages, etc. If I am arresting them for DUI, what reason could I have for needing to search the contents of the phone? If I am sworn to protect the public, I am just as sworn to protect the civil rights of the public! If I go to a neighboring city/state I would expect the same protection.

Re:Not not?

[Shakrai]

because governments cannot exist without consent of the governed.

They can if the governed aren't armed.

Re:Not not?

[KC7JHO]

Yes, and is real nice to NOT be a female officer when a 400# female makes such a claim! "Sorry mam but you are going to have to book this one in, she wants a full body cavity search and there seems to be a LOT of body and cavities, so have fun!"

Re:Not not?

[Oxford_Comma_Lover]

Ok, first off, I am a Police Officer in the state of Oklahoma (I know each state is different...) so with that being said, the search of a closed container during an arrest is for safety/inventory purposes.

I have never even thought I had a right to examine the contents of the phone past the initial screen (no pushing buttons, etc) OR a flash drive with out a warrant. Even when I server a search warrant on a house to retrieve and search electronic storage devices I must always specify that I will be searching the contents of every object found including any phones, disk, computers, cameras, etc. If, during my warranted search I find evidence of the suspect using an online e-mail service (I.E. g-mail) I must again obtain a warrant for this service as well. This is to protect the peoples right to freedom of speach. If I can not convince the judge that the suspect was using the service to conduct illegal activity pertaining to my previous warrant then the Judge will not grant my warrant. In my opinion this is perfectly logical!

If I am arresting some one for suspicion of dealing narcotics, I can justify a warrant on the phone to look for contacts, messages, etc. If I am arresting them for DUI, what reason could I have for needing to search the contents of the phone? If I am sworn to protect the public, I am just as sworn to protect the civil rights of the public! If I go to a neighboring city/state I would expect the same protection.

IANAL, but I believe the requirement to get the warrant for the online email service actually arises out of the same Fourth Amendment right to protection from unreasonable search and seizure that requires one to get a warrant to search a house. In Zurcher v. Stanford Daily the Supreme Court rejected the idea that there was in independent First Amendment bar to the scope of a search, although it did suggest that courts should be more rigorous about Fourth Amendment analysis in cases that implicated the First Amendment.

Re:Not not?

[Shakrai]

Yes, and is real nice to NOT be a female officer when a 400# female makes such a claim! "Sorry mam but you are going to have to book this one in, she wants a full body cavity search and there seems to be a LOT of body and cavities, so have fun!"

You poor bastards really don't get paid enough money for doing the job that you do.......

Re:Not not?

[KC7JHO]

Hmm, My first thought would be... why in the world is this phone in the bag. This requires inspection. I would most definitely check the phone over carefully, thinking that the suspect must be using the bag to keep something on the phone ir in the phone (not data) from smelling/leaking out in a pocket. Otherwise if found in a pocket with out a bag, ya everyone caries a phone, drop in in the bag with everything else and give it back to them when they are released.

Re:Not not?

[Anachragnome]

"TFA states the defendant answered the phone when a coke user acting as informant called and then police searched it."

THAT sounds like the cops knew they could not search the data on the phone unless they had some valid reason attributable to the case.

So what do they do? They instruct an informant(someone working with them...) to call the phone, someone they knew was a coke user, and thus CREATED a connection between the phone and they case they were pursuing.

Sounds like they knew exactly what the limitations of the law were and simply devised a way AROUND them. Stinks like entrapment to me.

Re:Not not?

[fluffy99]

Does that mean that a "closed container" is searchable without a warrant? How can that be deemed reasonable?

Yes. In Ohio, a closed container found on the arrestee or within reach can be searched without a warrant. The argument being made is that a cell phone is more like a computer which would require a warrant to search, and not a box containing physical items.

Re:Not not?

[Anonymous Coward]

Thank you, you're the kind of police officer we need on the streets.

Re:Not not?

[nsayer]

We already have so many laws on the books that each citizen routinely breaks at least some of them some of the time.

Laws which are impossible to avoid breaking are effectively a "writ of assistance," and are unconstitutional.

In fact, until it was repealed, the 55 mi/hr speed limit qualified - most of the time anyone driving on a freeway could either be cited for driving faster than 55 mi/hr or obstructing traffic.

Re:Not not?

[nsayer]

And yet, they can stop everyone driving past a sobriety checkpoint in the hopes of finding someone whose breath smells like booze.

Re:Not not?

[Dan Ost]

Not entrapment.

Planting "evidence".

Re:Not not?

[Dan Ost]

This is often why an officer will walk you around your car so that the whole car can be seen as being within your reach giving them authority to search for weapons.

How does walking you around the outside of your car give them the authority to search the inside?

Did I misunderstand your statement?

Re:Not not?

[Nick Ives]

That would lead to an insane level of judicial bureaucracy. I'm against the war on drugs and would much rather police have much more limited powers than they do now, but even I'm prepared to accept that the police should be entitled to search your person on the event of your arrest.

I'm glad police, in the USA at least, have to have a warrant to search your phone though. I don't think they should have the power to do that unless you're suspected of some crime involving your phone, in which case they'd have to get a warrant at some point anyway so they could just make it part of that.

Re:Not not?

[cboscari]

The law allows these kinds of searches to protect the officers making the arrest from hidden/concealed weapons carried by the suspect. This includes being permitted to search within an the arms length in the U.S. because they are accessableby the suspect. Seems reasonable to me. You might argue about the admissibility of evidence for *another* crime if it is found, but expecting EVERY police office to wake up a judge for EVERY arrest they perform for a warrant of this type is an example of a "bad law." Police have a right to protect themselves, especially since they deal with violent offenders ALL THE TIME.

Re:Not not?

[Anonymous Coward]

because governments cannot exist without consent of the governed.

They can if the governed aren't armed.

Even if the governed are armed, they don't stand much of a chance against tanks. See the Hungarian Revolution of 1956 for an example of a revolution that initially was able to take down the government but failed when the tanks rolled in.

I posit this: a government cannot exist without either the consent of the governed or the consent of tank crews willing to attack civilians. Governments only fall when their approval rating drops low enough that they can't recruit soldiers.

Re:Not not?

[Shakrai]

Those tank crews weren't manned by Hungarians were they? Hungary was for all practical purposes an occupied state at that time.

Re:Not not?

[Lehk228]

why in the world is this phone in the bag

to keep it dry

Re:Not not?

[corbettw]

I believe that's for the safety of the officer.

I believe it's also to protect the officer from a later civil suit. If you have an Altoids tin that ends up missing, or you get it back later and claim the priceless diamond that was inside is now missing, it becomes your word against the officer's. If he opens it and checks the contents and sees that there is no priceless diamond and makes a proper note of the actual contents, you can't pull that later.

The dissenting judge seems to miss the point that you can store razor blades or valuables in a phone book, therefore these types of searches are necessary. You can't do that in a cell phone (except maybe the battery compartment, but that part is most likely not protected by this ruling).

Re:Not not?

[DavidTC]

Well, allowing police to look for weapons is reasonable.

And if someone taken into custody is holding a 'container', that container should certainly be taken away. Who knows what is in there? There could be a weapon.

But they should not be searched.

And I'm failing to see why cell phone should be taken away at all, unless the officer is going to get a warrant and search it. Which, I believe, allows them to withhold it from the person so they can't destroy data.

Likewise, there might be cases where a phone call might allow them to get someone else to destroy evidence, or warn them off, so i can see a case being made there...but a case has to, in fact, actually be made.

If neither of those are true, people should be allowed to keep their cell phones while in custody of the police. Or, at least, have access to their cell phones. (It's absurd how much calls from jail cost.)

I don't really understand why anyone gets to take them away. From actual convicted people, fine. For when the phone is actual evidence, fine. From a mafia boss that the police can make a compelling argument that he could use code to order a hit on someone, fine. (Such a claim should be part of the arrest warrant.)

Anything else, no. I've never understood why the police are allowed to punish people who've been detained and possibly not charged with a crime, and certainly not convicted of one.

Re:Not not?

[zoloto]

Too bad I haven't seen many like this guy. NYC has far too many meatheads to feel comfortable even looking at one at times. :(

Re:Not not?

[AK Marc]

But then basically that makes it sound like a container, regardless of its condition, is searchable without a warrant, so it makes no difference whether judges would argue if a phone is a container or not.

Open containers can be searched by one set of rules. Closed containers another set of rules. "non containers" like laptops and, in this case, a cell phone, require their own warrant. The same is true of a locked container requiring a separate warrant.

Re:Not not?

[A nonymous Coward]

Ah ... nice ideal, but the brick wall of reality makes things fuzzier. What if someone is arrested for trying to kill somebody with a knife? Seems reasonable to most people that the need to check the guy for other weapons can't wait for a search warrant.

That's part of the bigger problem, that anyone arrested should be searchable for weapons or anythong which could be dangerous to the police.

A purse can certainly hold a weapon. A wallet not so much, but still possible. A cell phone, once you've done the basic physical search, the rest ought to be off limits without a warrant.

Re:Not not?

[demonlapin]

You sound like a decent guy. Why are you a cop?

Re:Not not?

[A nonymous Coward]

It's for safety, not for evidence. The intent is to remove any weapons from your possession. But if they find weed, I suspect that is admissible evidence for your weed trial.

Re:Not not?

[A nonymous Coward]

The search is for weapons that might be kept on a purse or other similar closed container, whereas an open container obviously doesn't need a warrant because it is open to public view anyway.

Re:Not not?

[Kreigaffe]

Insane judicial bureaucracy? Yes, but not in the way you think!

It would lead to judges serving along-side police, to issue on-the-spot warrants. Eventually, as a money-saving initiative, judges themselves would begin to also handle the duties of the police. We then find ourselves starring in Judge Dredd, and summary executions stop becoming abominable and instead become more akin to winning the lottery. Anything but deal with banter between Rocky and Deuce.

Re:Not not?

[Sabriel]

You'd prefer the alternative?

Re:Not not?

[Anonymous Coward]

Those tank crews weren't manned by Hungarians were they? Hungary was for all practical purposes an occupied state at that time.

Doesn't really change my point. The revolution was flattened because the guys in the tanks weren't sympathetic to them.

I don't really think that any modern revolution can succeed unless a significant portion of the trained military forces sent to oppose them sympathize enough with them to disobey orders or defect.

Re:Not not?

[Anonymous Coward]

But... but.. dont you just taser them first and then search?

Re:Not not?

[shadoelord]

I've always wondered why its not considered a closed glove box in a car.

Re:Not not?

[phliar]

There's a difference between walking and driving. I don't need a license to walk; no one can take away my right to walk. You probably remember "driving is a privilege, not a right" from your high school drivers' ed. Walking is a right.

Re:Not not?

[abulafia]

That is true. And the logic runs counter to searching cell phones.

At least, I've never heard of a cop injured by a phone number.

I also like that this should become a bright-line rule against cops deleting people's cell-phone pictures because some Member of the Public took a picture the cop doesn't want seen. On the down-side, it might lead to more phones that are accidentally broken when a photographer, ahem, disturbs the peace. (Of course, my phone locks automatically, and I've never been under the impression that being detained would require me to provide the password.)

Re:Not not?

[Paxtez]

If neither of those are true, people should be allowed to keep their cell phones while in custody of the police. Or, at least, have access to their cell phones. (It's absurd how much calls from jail cost.)

I'm sorry... Seriously?

Ok let's not count the fact that that a cell phone could easily have hidden weapons/means of escape (http://www.google.com/search?q=cell+phone+gun) or the previously mentioned fact about the crimes that could be committed while the person was in jail.

The people are charged with a crime and they get their rights/freedoms taken away unless they post bail. They don't get to leave, they don't get to have their phone, they don't get to tivo american idol. That's the point.

If you have a problem with the whole bail/arrest system, that is a completely separate argument.

Re:Not not?

[NastyGnat]

Not only would I like to thank you for what sounds like honest work with some integrity, you sir, also sound like a HAM operator. :D Yet another great public service. 73,

Re:Not not?

[Stiletto]

I don't really think that any modern revolution can succeed unless a significant portion of the trained military forces sent to oppose them sympathize enough with them to disobey orders or defect.

See Iraq and Afghanistan for examples of insurgencies making the best of small arms, improvised explosives and knowledge of their local environment, vs. the world's most advanced army.

Re:Not not?

[jwiegley]

I've never understood why the police are allowed to punish people

Because you hold a vision of what your rights are and what a punishment is that is in-congruent with that of the justice system. (and, frankly, the justice system is right.) Nobody has a right to a phone, or a laptop, or a sandwich, etc. Taking away a phone in such situations is, at worst, an inconvenience; not a punishment.

basically... quit crying about your blanky being taken away.

Re:Not not?

[demonlapin]

My professional encounters with officers of the law have been pretty benign. Of course, I'm white, male, and 35, I drive a nice car, and I don't get in drunken fights.

I've encountered enough stories, however, from those who are NOT all of the above (and from off-duty cops who thought they were just chatting with the guys) that I regard the police as just a bunch of petty tyrants until proven otherwise. The fact that they are a necessary evil does not make them less evil.

Still, I know that places vary, and that there in fact may be a place where police do good work. I asked the question because I was curious - is he trying to reform a bad system from within, or does he live somewhere that good people do the job?

Re:Not not?

[Anonymous Coward]

Stop talking to the police!

Re:Not not?

[Anonymous Coward]

Mod parent up! and let me echo the thank you.

Re:Not not?

[DavidTC]

Nobody has a right to a phone, or a laptop, or a sandwich, etc.

Um, yes, people do in fact have the right to their own property. Check the 4th amendment.

However, I was not disputing that police are allowed to hold property. They are. I'm disputing the idea they're allowed to punish people.

By, for example, requiring them to use the jail's absurdly expensive phone system to make calls instead of the cellphone they had on their person when arrested. That serves absolutely no purpose but to punish people who have been detained.

Re:Not not?

[DavidTC]

Ok let's not count the fact that that a cell phone could easily have hidden weapons/means of escape (http://www.google.com/search?q=cell+phone+gun)

Which would be a valid reason to search the body of a cell phone. I have no problem with that.

or the previously mentioned fact about the crimes that could be committed while the person was in jail.

Better stop them from making any phone calls or speaking to a lawyer, then.

The people are charged with a crime and they get their rights/freedoms taken away unless they post bail. They don't get to leave, they don't get to have their phone, they don't get to tivo american idol. That's the point.

See, I've got you here arguing that the point is to punish them, and I've got the other guy arguing that it is, in fact, not punishment. Interesting.

What, exactly, gives the police the right to punish you because you've been charged with a crime. (Or, heck, just detained 24 hours without being charged?)

They certainly have the right to restrict someone's movement, I don't dispute that at all. That's the power of 'arrest'. I'm just having trouble seeing how they have the right to restrict the rights of people in custody that isn't towards that end.

Granted, there are plenty of very dangerous people who, a case can be made, should not have access to the outside world at all, or destruction of evidence or even murder of witnesses will happen. And I'm fine for the police making that case when they get the arrest warrant.

Likewise, where are plenty of things that are too dangerous to allow in jails, like weapons, and everything should be searched to make sure it does not contain those.

But taking away everything as a matter of policy for all the innocent people in jail is absurd and shouldn't be allowed. (And if the problem is they might pass stuff off to convicted people, who do have their right to possess random items restricted, the solution is to have separate areas for those two groups, not restrict everyone.)

Re:Not not?

[Paxtez]

Ok let's not count the fact that that a cell phone could easily have hidden weapons/means of escape (http://www.google.com/search?q=cell+phone+gun)

Which would be a valid reason to search the body of a cell phone. I have no problem with that.

A cellphone gun is an extreme example of this, what about hidden drugs or lockpick kit behind the battery or even in the battery casing? Or what about components of the phone? Little bits of metal or chemicals that could be used to escape or injure other people arrested / officers.

Is the state supposed to pay for training to teach officers how to disassemble / reconstruct phones in order to properly search them?

or the previously mentioned fact about the crimes that could be committed while the person was in jail.

Better stop them from making any phone calls or speaking to a lawyer, then.

I was more thinking along the lines of a pissed off drunk calling 911/the police station all night using a prepaid phone. Or calls to facilitate escape "One of the cops is in the bathroom now!"

The people are charged with a crime and they get their rights/freedoms taken away unless they post bail. They don't get to leave, they don't get to have their phone, they don't get to tivo american idol. That's the point.

See, I've got you here arguing that the point is to punish them, and I've got the other guy arguing that it is, in fact, not punishment. Interesting.

What, exactly, gives the police the right to punish you because you've been charged with a crime. (Or, heck, just detained 24 hours without being charged?)

They certainly have the right to restrict someone's movement, I don't dispute that at all. That's the power of 'arrest'. I'm just having trouble seeing how they have the right to restrict the rights of people in custody that isn't towards that end.

Well maybe not punishment, perhaps I misspoke (err typed). That is exactly what arrest is: "An arrest is the act of depriving a person of his or her liberty usually in relation to the investigation and prevention of crime..." (http://en.wikipedia.org/wiki/Arrest). The person who is arrested gets most of their rights taken away. Liberty doesn't just mean 'go where you want'.

Granted, there are plenty of very dangerous people who, a case can be made, should not have access to the outside world at all, or destruction of evidence or even murder of witnesses will happen. And I'm fine for the police making that case when they get the arrest warrant.

How would they know to? Most arrests aren't made off of warrants, most are made on-view or just thru investigations. It would make investigations of criminals a lot more difficult (destruction of evidence, establishing alibi's, etc).

Likewise, where are plenty of things that are too dangerous to allow in jails, like weapons, and everything should be searched to make sure it does not contain those.

But taking away everything as a matter of policy for all the innocent people in jail is absurd and shouldn't be allowed. (And if the problem is they might pass stuff off to convicted people, who do have their right to possess random items restricted, the solution is to have separate areas for those two groups, not restrict everyone.)

Anything not made out of NERF can be used as a weapon. Pencils, pens, cellphones, belts, shoelaces, etc. What do you just hope that the crazy, meth-addict, guy doesn't stab you with a pencil while you sleep? The police are the ones responsible for you once your liberty is taken away, if you get hurt in there they will have to answer for it.

Let's say there are ways to fix everything I mentioned with absolute 100% certainty:
"Magic-Scan(r)" scans the item/phone for any item/component/chemical of a phone that could possibly be used in a

Re:Not not?

[jwiegley]

Awesome! I love when somebody brings in the Bill of Rights to support their lame argument! Because almost everybody is an idiot when it comes to constitutional law. You, sir, do not disappoint either!

The idiots fail in two ways: A) That haven't actually read it themselves, or B) they cherry pick it or interpret in such a way that it comforts them instead of using a judicial eye.

The wording of the fourth amendment includes: "be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Please carefully note the inclusion of the word "unreasonable". Unlike the 2nd amendment which is absolute, the fourth amendment is conditional.

The judicial system has already decided that an arrest provides the probable cause necessary to deem search and seizure of the suspect's property REASONABLE and therefore permissible. Good job. you sunk your own argument.

So, yes, the police can take away the suspect's cell phone. I still contend that isn't a punishment; no more than taking away the suspect's watch is.

Are you ready for this bad news... Life is tough. Everything unpleasant can be described as a "punishment" using your logic. So, again, cry all you want for your blanky; you don't have a right to it as you imply.

P.S. Santa doesn't exist either.

What if...

[vvaduva]

I can't read TFA since I don't have a NYT account, but what if the suspect had a laptop or netbook on his person; wouldn't the police need a separate search warrant to search that specific machine? A cell phone is not different, is it? It sounds like a good decision to me.

Re:What if...

[XxtraLarGe]

username: slashdotnyt
password: slashdotnyt

Re:What if...

[Shadow Wrought]

but what if the suspect had a laptop or netbook on his person; wouldn't the police need a separate search warrant to search that specific machine? A cell phone is not different, is it?

I think the Courts have been trying to differentiate far too much. If it's OK to search your physical papers, address books, and mail you might have, why should a computer, cell phone, or netbook be any different? It's just data in 1's and 0's instead of ink and paper.

Re:What if...

[Anonymous Coward]

There aren't many cases where I think requiring the police to get a warrant is too large an imposition. If they have reason to believe there's information of use on that cell phone, they can go get a warrant and then search the phone.

Re:What if...

[osu-neko]

I think the Courts have been trying to differentiate far too much. If it's OK to search your physical papers, address books, and mail you might have, why should a computer, cell phone, or netbook be any different? It's just data in 1's and 0's instead of ink and paper.

These days, devices like a cell phone often don't even technically contain the data, they're just the device for accessing the data stored "in the cloud" (i.e. in some datacenter somewhere). If your view is to be taken seriously, one of two things must obtain: (1) you must insist that officers be able to tell the difference, a technical detail that even the owner might not know, or (2) you believe a police officer, upon arresting you, can not only look at everything you have in your possession, but use such items to access any accounts or other information you might be able to access, including viewing data stored on computers in other countries, assuming you were carrying a device that allowed you to access it (which, in today's internet-connected age, is quite common and includes pretty much everything, e.g. your back account records can be accessed from your phone).

(1) requires near omniscience on the part of officers, (2) is essentially throwing away the need for warrants to access anything.

Re:What if...

[osu-neko]

Erg, that's "bank account records". BTW, I think this is the only forum I use that still doesn't have an edit feature. Time for /. to wake up and smell the 21st century?

Re:What if...

[Thinboy00]

Because you might well be carting around several Libraries of Congress worth of data on the computer, but not in ink and paper.

Re:What if...

[fulldecent]

>> I think the Courts have been trying to differentiate far too much. If it's OK to search your physical papers, address books, and mail you might have, why should a computer, cell phone, or netbook be any different? It's just data in 1's and 0's instead of ink and paper.

wrong.

please see above.

Re:What if...

[KC7JHO]

Partially due to the fact that the evidence stored electronically is usually easily altered. Not only does the officer have to get a warrant to do the search but the officer must conduct the search in a forensically safe manner so as to maintain the integrity of the data as much as possible.

Re:What if...

[Anonymous Coward]

If it's OK to search your physical papers, address books, and mail you might have, why should a computer, cell phone, or netbook be any different? It's just data in 1's and 0's instead of ink and paper.

If it was OK to search for physical papers, address books and mail without a warrant, sure.
But it's not.

except...

[Anonymous Coward]

Isn't that with certain exceptions...

If you're crossing a border.
If you're suspected of being a terrorist.

and maybe soon

If you're suspected of copyright infringement.

Persons, papers and effects...

[Jah-Wren Ryel]

He compared the data contained within an address book that would be searchable.

How is an address book not "papers" as in the 4th ammendment's person, papers and effects?

Re:Persons, papers and effects...

[wizardforce]

How is an address book not "papers" as in the 4th ammendment's person, papers and effects?

One more example of how the word "reasonable" was certain to be misinterpreted by the courts in the state's favor.

Re:Persons, papers and effects...

[TheMeuge]

That's a very good point. I'd like to hear an attorney's view. Certainly there are enough on Slashdot.

But that's not the first time I see this. Hell, even Law and Order has episodes where they go through the suspect's address book. I guess putting everything under encryption would work, as you could probably plead the 5th and not share the password.

Re:Persons, papers and effects...

[RingDev]

If you have an address book, or day planner, you could use it to hold a gun or a knife. So an arresting officer has the right to open it and ensure that there is nothing that could jeopardize their safety in it. They should not be reading the papers, BUT, if you have a 8x10" glossy photo of you putting a round into someone...

The argument here, as I understand it, is that the majority felt that there is no need to peruse the DATA on the phone to ensure that it will not jeopardize the officer's safety. You can not store a gun or a knife in binary format. So while the cops could crack the case and ensure that there are no hidden contents in side the case, they can not flip through your address book, recent calls, or text messages.

-Rick

Re:Persons, papers and effects...

[Trepidity]

It is, but the 4th amendment only prohibits "unreasonable" searches. In the general case, a "reasonable" search is one authorized by a warrant, but the courts have held that some kinds of warrantless searches are presumptively reasonable. Search of an arrestee incident to arrest is one of them.

Re:Persons, papers and effects...

[DragonWriter]

How is an address book not "papers" as in the 4th ammendment's person, papers and effects?

It is. The basis on which they could be reviewed in a search incident to arrest is not that they are an exception to the reasonableness requirement (which admits to no exception), but an exception to the implied warrant requirement. You'll note that the language of the amendment doesn't ever explicitly requires warrants for searches, it requires reasonableness and it limits the conditions in which warrants can be issued.

Re:Persons, papers and effects...

[IndustrialComplex]

How is an address book not "papers" as in the 4th ammendment's person, papers and effects?

That's what happens when people forget that the Constitution is a limitation on the government, and mistake it for a permission slip for the people.

But mostly it's a byproduct of the concept that Reasonable means "Everything as long as it didn't involve a nightstick up your rear". We just regained that last clause recently, but only just.

Re:Persons, papers and effects...

[kingbilly]

I'd mod this +1 Insightful if I had the points.

Re:Persons, papers and effects...

[DaveV1.0]

FTA:

The trial court admitted the call records and phone numbers, citing a 2007 federal court decision that found that a cell phone is similar to a closed container found on a suspect and therefore subject to search without a warrant. ...
''We do not agree with this comparison, which ignores the unique nature of cell phones,'' Lanzinger wrote. ''Objects falling under the banner of 'closed container' have traditionally been physical objects capable of holding other physical objects.

As someone else said, an address book would be considered a "container" as it can contain other items between the pages. They can search the address book for other items.

Interestingly, I am not sure the data contained in the address book would be admissible under the theory put forth. This could have interesting side effects.

Re:Persons, papers and effects...

[RingDev]

This isn't some gross abuse of the bill of rights. This is for items just like this: http://www.dillonprecision.com/content/p/9/pid/23863/catid/14/Dillon__039_s___039_Plan_B__039__Day_Planner

A Closed Container, when you are being arrested, could contain a weapon. A day planner is large enough that it could easily contain a weapon. A cell phone could be used to smuggle a weapon, ammo, or a bomb, BUT, as the majority has rightfully ruled, those threats are not contained in the DATA on the phone. So if a police were to arrest you, and feared that you may have a shiv stashed in your phone, they are completely with in their rights to pop the case on your cell phone and ensure that there are no weapons inside of it. This ruling reiterates that they are NOT with in their rights to turn on your phone, flip through your address book, recent calls, and text message to ensure that there are no weapons in it.

-Rick

Re:Persons, papers and effects...

[phantomcircuit]

They are allowed to search your persons, papers, and effects.

This ruling makes absolutely no sense. Under this ruling a physical address book is open to search upon arrest, but the virtual address book in a cell phone is not.

That they ruled the cell phone to not be a closed container is actually what limits the police. Kind of crazy, right?

Re:Persons, papers and effects...

[HTH NE1]

Some airport screeners don't even allow pictures of guns. Not even pictures of fictional guns held by giant robots on T-shirts, even if was an Autobot and not a Decepticon.

Re:Persons, papers and effects...

[Anonymous Coward]

A picture of a gun (a real photo, something printed on a post card, the cover of a the latest issue of Guns Weekly, or screened onto a t-shirt, etc.) is protected by free speech. If you, or anyone you know, has been stopped by an airport screener and not allowed to let such an item through security, it would be grounds for a serious civil lawsuit. Now, if it was some weird electronic gizmo displaying a gun on an lcd, with lots of wires hanging out and blinking lights and a countdown timer going off (and who among us hasn't created such a machine at least once?)... Yes, they could stop you.

Re:Persons, papers and effects...

[Hurricane78]

Wait until they break out the “malware is a WMD” mind-twist. ^^

Re:Persons, papers and effects...

[HTH NE1]

It was at Heathrow Terminal 5. That's the UK. The person affected had to change into a different shirt and pack the T-shirt, and was threatened with arrest if he were to put it back on, but was allowed to fly.

A Google search will find many more articles about the incident.

Re:Persons, papers and effects...

[osu-neko]

But that's not the first time I see this. Hell, even Law and Order has episodes where they go through the suspect's address book. I guess putting everything under encryption would work, as you could probably plead the 5th and not share the password.

The 5th amendment prevents the state from compelling you to testify against yourself. Specifically, "...nor shall be compelled in any criminal case to be a witness against himself..." It does not authorize you to hide evidence. You must still turn over evidence, even incriminating evidence, if ordered by a court; you just can't be called upon by the court to explain it.

Re:Persons, papers and effects...

[Thinboy00]

I think if you give them permission to search your car for e.g. guns and they find e.g. pot they can still arrest you and charge you and convict you because the search was, at the time, reasonable, even though they found stuff they weren't supposed to be looking for. IANAL.

Re:Persons, papers and effects...

[Shakrai]

Not much surprise there. They surrendered any pretense of caring about civil liberties a long time ago.

Re:Persons, papers and effects...

[Shakrai]

If you gave them permission to search your car for anything you deserve to go to jail for stupidity.

Re:Persons, papers and effects...

[nsayer]

Irrelevant. Once someone is under arrest, a search of their person, papers and effects is "reasonable." Go RTFA.

Re:Persons, papers and effects...

[Anonymous Coward]

He compared the data contained within an address book that would be searchable.

How is an address book not "papers" as in the 4th ammendment's person, papers and effects?

lololololol

A cell phone is not made of paper, so the 4th doesnt apply.

lolololol

Welcome to fascist america.

Re:Persons, papers and effects...

[Anonymous Coward]

You must still turn over evidence, even incriminating evidence, if ordered by a court; you just can't be called upon by the court to explain it.

Make me. Try to compel me to do so. Hold me in contempt.

See if I care.

Re:Persons, papers and effects...

[Paxtez]

If you have an address book, or day planner, you could use it to hold a gun or a knife. So an arresting officer has the right to open it and ensure that there is nothing that could jeopardize their safety in it.

Maybe, depending on where you live.

But for the most part, no. For example if you get arrested for DUI and you have a backpack, you get separated from your bag and thus it does not create any danger to the officers (well I suppose except for an armed bomb, but that doesn't seem reasonable). But there is a good reason to search it, to do an inventory of the container so the suspect doesn't say "I had $10,000 in my bag. The cops took it!".

Re:Persons, papers and effects...

[DaveV1.0]

True, but the car would be the container and the pot a physical object. The names and numbers in the address book are not physical objects, they are data. The names and addresses in a cell phone are not physical objects, they are data.

The only difference between the data in an address book and the data in a cell phone is the way in which the data is stored.

Tangibility is Irrelevant

[Prysorra]

"He compared the data contained within an address book that would be searchable."

In the future, so too would be human thoughts. Human heads are simply containers for memories stored in synaptic format.

Re:Tangibility is Irrelevant

[donutz]

Whoever moderated this comment as funny doesn't get it.

I'm not sure how to feel.

[jtownatpunk.net]

The privacy advocate in me is thrilled. The critical thinking side of me feels the logic used to arrive at that ruling is asinine.

Re:I'm not sure how to feel.

[maxume]

It isn't that tortured, previous cases have established that cops can check the contents of containers, this ruling establishes that cell phones do not qualify for that exception.

Re:I'm not sure how to feel.

[clone53421]

Welcome to the US legal system.

Re:I'm not sure how to feel.

[DragonWriter]

The privacy advocate in me is thrilled. The critical thinking side of me feels the logic used to arrive at that ruling is asinine.

The logic used is that:
(1) It is well-established federal case law (articulated by the US Supreme Court, whose decisions on federal questions are binding on the Ohio Supreme Court), in general, law enforcement searches without request require a warrant to be reasonable;
(2) It is well-established federal case law (articulated by the US Supreme Court, whose decisions on federal questions are binding on the Ohio Supreme Court) that a search incident to arrest of the person arrested, including closed containers in their immediate control, is reasonable without a warrant because of the potential for such containers to contain objects which may pose a danger to the arresting officers or the public.
(3) While a cellphone may "contain" data, the date it "contains" is not the same as physical contents of a container discussed in #2 in the manner which makes warrantless searches reasonable.
(4) As a consequence of #3, in the absence of some other exception to the warrant requirement that would apply, the general rule in #1 applies, and a warrant is required.

What part this reasoning do you object to?

Re:I'm not sure how to feel.

[jtownatpunk.net]

How 'bout the fact that they CAN flip through notebooks which would seem to be a very similar type of non-container. If they can't flip through the digital contents of a phone, they shouldn't be able to flip through the analog contents of a notebook.

Re:I'm not sure how to feel.

[DragonWriter]

How 'bout the fact that they CAN flip through notebooks which would seem to be a very similar type of non-container.

Using books, notebooks, and anything that is a bound set of pages, particularly with front-and-back covers, to conceal physical items, including weapons, is a well-attested practice in history.

A notebook is a physical container (not a "non-container"), which usually contains physical pages, and may also be used to conceal other physical items. It is also a data container. Because of the manner in which data is stored, inspecting the physical contents also exposes the data to view. This is rather different from the case with a phone, where, while one might conceivably be used to conceal physically dangerous items (e.g., within the shell of the phone), inspecting the physical contents of the phone for physically dangerous items will not expose the data, so the exception to the warrant requirement which allows as reasonable searches for physical objects in the control of the arrestee, even inside of closed containers, doesn't apply to searching the data of a cellphone, while it does apply to searching the physical content of a notebook, even though the latter will also expose the data content of the notebook.

Re:I'm not sure how to feel.

[jtownatpunk.net]

Okay, I'm a little less annoyed.

Why would an address book be searchable?

[jcr]

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.

Seems quite plain to me that someone's address book is part of a person's "papers and effects", and therefore would require a warrant to search.

-jcr

Re:Why would an address book be searchable?

[Toonol]

That clause doesn't say a warrant is required to conduct a reasonable search; just that people have a right not to be unreasonably searched. There are reasonable searches, such as officers searching a suspect for hidden weapons. Reading through a person's papers generally IS unreasonable... but unfortunately, the boundary is fuzzy. There may be cases when it is actually is reasonable, such as if a police officer has legitimate reason to believe the papers are part of a crime in progress... and the state has a constant tendency to increase the bounds of 'reasonableness'.

Good.

[TyIzaeL]

I'm glad to see this level-headed decision coming out of my own home state of Ohio. I hope eventually similar rulings will be made regarding laptops.

makes sense given the original rationale

[Trepidity]

If I recall correctly, the original rationale for concluding that warrantless searches incident to arrest are "reasonable" is that: 1) the arresting officer needs to be able to ensure that the suspect is unarmed and not carrying recording devices; and 2) the police need to be able to inventory the subject's possessions in case a future dispute arises over their proper return.

I don't see either of those rationales making sense for searching electronic devices. Unlike with a physical container, where the suspect might be concealing a weapon (point 1), a suspect cannot conceal weapons within the data contained on electronic devices (at least for definitions of "weapon" relevant to ensuring a police officer's safety). An arrestee might, I suppose, later claim that the police stole a valuable item that was never in fact there (point 2), but I think this is considerably more far-fetched than with physical containers--- we're not talking about stealing gold coins out of a purse or something, but maybe destroying data that the arrestee claims is valuable and irreplaceable. Is that concern sufficient to allow police to routinely inventory all data on arrestees' devices? And how would they even inventory it?

Re:makes sense given the original rationale

[Anonymous Coward]

why worried about recording devices.. if the cops are innocent, they have nothing to worry about right?

Re:makes sense given the original rationale

[selven]

Recording devices? Recording your own interrogation is a physical threat to the arresting officer?

Re:makes sense given the original rationale

[clone53421]

the arresting officer needs to be able to ensure that the suspect is unarmed and not carrying recording devices

...wait, what?

Re:makes sense given the original rationale

[amRadioHed]

Recording devices? Why should the police care if the suspect had a recording device? But if fear of recording devices is a legitimate concern that warrants a search, certainly electronic devices would be potential recording devices.

Re:makes sense given the original rationale

[Trepidity]

I may have misremembered that part--- don't recall what the Supreme Court decision establishing the search-incident-to-arrest doctrine was and haven't read it recently, so it might well have only had weapons as a justification.

Re:makes sense given the original rationale

[Trepidity]

Ah, found it, from Wikipedia:

This search is limited to only the person arrested and the area immediately surrounding the person in which the person may gain possession of a weapon, in some way effect an escape, or destroy or hide evidence.

Re:makes sense given the original rationale

[Anonymous Coward]

Phewee, look at the replies. That "recording devices" sure unleashed a wave of righteous Slashdot indignation.

Re:makes sense given the original rationale

[Shakrai]

If I recall correctly, the original rationale for concluding that warrantless searches incident to arrest are "reasonable" is that: 1) the arresting officer needs to be able to ensure that the suspect is unarmed and not carrying recording devices;

Actually they can search you for weapons without arresting you, if they have a reasonable suspicion that you are armed. It's called a Terry stop. The search is supposed to be limited to a pat down for weapons but they can seize other contraband if the nature of said contraband is readily apparent to the officer during the course of the frisk, i.e: he's searching you for a knife or firearm but comes across your glass bowl and stash of weed.

Re:makes sense given the original rationale

[Anonymous Coward]

Ah - but don't forget... strong encryption is classified as a munition according to US law. So if the cell phone had any encrypted data, by the letter of the law it indeed contained a weapon...
(this is all the more reason to move encryption schemes out of the munitions category)

Re:makes sense given the original rationale

[KC7JHO]

Ya, the recording devices... hmm. The interrogation should be recorded and the suspect's lawyer has a right to that recording. Never heard of dening the suspect the right to a recording device. Perhaps in your state? Interesting, yet I can not think of a reason why not.

Re:makes sense given the original rationale

[Anonymous Coward]

or destroy or hide evidence.

Well, there you go. It's quite easy to make the case that this applies to mobile phones.

Re:makes sense given the original rationale

[Anonymous Coward]

why does the officer need to be sure the suspect is not carrying a recording device? the police do not have the right to do their job without being monitored by the people.

Re:makes sense given the original rationale

[gmhowell]

Ya, the recording devices... hmm. The interrogation should be recorded and the suspect's lawyer has a right to that recording. Never heard of dening the suspect the right to a recording device. Perhaps in your state? Interesting, yet I can not think of a reason why not.

Me neither, but apparently, the FOP in Montgomery Co. MD can.

I broadly agree with the disenting opinion

[91degrees]

I just see the conclusion as backwards. Why do the police have the right to search an address book without a warrant? Doesn't that violate the 4th amendment?

Re:I broadly agree with the disenting opinion

[DaveV1.0]

You can stick/hide a physical object, including illegal and/or dangerous objects, in an address book. That makes the address book a "closed-container" during an arrest. Officers can search a closed container in the possession of someone being arrested to ensure there is nothing dangerous in the closed container.

Re:I broadly agree with the disenting opinion

[Lehk228]

Why do the police have the right to search an address book without a warrant? Doesn't that violate the 4th amendment?

because the police have a lot of guns and they work for the government which has a military with even more guns.

1TB SD card?

[bmimatt]

Now I need a 1TB memory card for my cell and a quick call to Apple to get the RMA I need to return my laptop.

The ruling sounds right

[JerryLove]

but the pattern in rulings related to "Terry stops" seems to be the other way. Florida recently ruled that a search of a car someone just left was approprite "to ensure officer safety", though a search of a house was not.

I'm trying to figure out how a knife in a car would pose a danger to a police officer when the owner is sitting in the back of a patrol car.

Sadly: the tendancy for decades seems to be away from protection of the citizen's rights.

Re:The ruling sounds right

[Anonymous Coward]

Terry Stops seem to cover only persons and not vehicles? Where do I start reading to learn more (other than wiki)?

Re:The ruling sounds right

[KiahZero]

Which is why searches incident to arrest no longer include cars when the person arrested doesn't have access to the car.

Arizona v. Gant, 129 S.Ct. 1710 (2009).

From TFA: "acting as a police informant"

[Anonymous Coward]

The suspect received a call from "a crack cocaine user acting as a police informant".

I would have loved to hear that conversation.

Gotta love poofreaders.

Defining a "closed container"

[Slipped_Disk]

Over-simplifying for the scope of the decision:
A woman's purse with the zipper shut is a closed container. If said woman is arrested police have the right to search her handbag *incident to her arrest*, *assuming probably cause*.

The Ohio Supreme Court decision says that the contents of your cell phone don't fall into that category - i.e. your cell phone is not just a box filled with "data" but rather falls under the 4th amendment's "papers and effects" scope.

(Of course the woman who just had her tampons and birth control pills dumped out on the hood of a police cruiser could argue the same Re: her purse -- the difference being you might have a knife/gun/etc. in the purse)

Somewhat complicated...

[gedrin]

It seems very reasonable that an officer could look through a person's purse or day-timer if they are arrested. Since phones and digital devices are often similar, it really is just another kind of day-timer. However, computers are often a great deal more. It is reasonable for an officer to secure his safety. It is not reasonable for an officer to search through a suspect's family photos or personal messages. For evidence gathering, I would hope most judges and DA's are sophisticated enough to include digital records with other targetted records searches. However, searching a computer at a tarry is unreasonable.

Re:Somewhat complicated...

[DragonWriter]

It seems very reasonable that an officer could look through a person's purse or day-timer if they are arrested. Since phones and digital devices are often similar, it really is just another kind of day-timer.

The reason that this viewed as a "reasonable" search is to protect the physical safety of officers and the public, searching for information rather than physical hazards this way is really a violation of the purpose of the exception but since the exception makes anything found in the course of such a safety-related search admissible, so information found in the course of the search is allowed in evidence (the concept here is that if you made non-safety evidence found in the course of such a search inadmissible, you would create a conflict of incentives which would create avoidable hazards to law enforcement and the public.)

So an electronic device -- even one equivalent to a daytimer -- would be very different, since it can't conceal the same kind of physical hazard that justifies a warrantless search incident to arrest in the first place.

Re:Somewhat complicated...

[gedrin]

I'm pretty sure that's what I said. :P

4th Amendment

[YesDinosaursDidExist]

The search and seizure you are all thinking about is only inside a car, or motor home licensed for road travel. In that case an Officer may search a "closed container" to check for dangerous objects etc. without a warrant. Otherwise, a closed container MAY NOT be searched. A cookie jar inside your house may not be searched without a warrant because its contents are not in the open, thus a "closed container" and thus you have a reasonable expectation of privacy. The same thing applies to your computers, they are a closed container and need a warrant to be searched. In this case, even if your phone is in your car, where your expectation of privacy is diminished, your phone may not be searched without a warrant because it cannot contain anything dangerous, unlike a suitcase in your car may (which may be searched if its inside your car). A little commonsense goes a long way....

Searches "without a warrant"

[Monkeyman334]

I see all these slashdot stories that complain about government searches "without a warrant," and they all often very misleading. There are plenty of reasons the government can do a "search" without a warrant that are for very legitimate purposes. There are two categories of this misinformation being spread. The first category is like this one, where a search is valid where one of the exemptions apply, which are: in cases of an emergency, if the person gives consent, a search incident to arrest, and an inventory. If a shooting is in progress the police can kick down your door and try to save the people inside without a warrant. They have just "searched" a home without a warrant, big deal. The issue here is a search incident to arrest. If you get arrested the police can search all your belongings and within a reasonable distance to look for evidence of whatever they're arresting you for. There are very legitimate reasons for this. If the police take your car, they conduct an inventory of the vehicle without a warrant (although this isn't really a search, and they can't take apart the doors and things). The second type of misleading information on slashdot is when police get information using a subpoena or court order and Slashdot proclaims "cops conduct search of ________ without warrant!" Which, while true, ignores the fact that the "search" was subject to judicial oversight, but just didn't rise to the need getting a warrant. This is like telling non-technies that their computer is broadcasting an ip address and trying to scare them. You have to understand the 4th amendment more to understand the issues in these decisions. Here, judges are trying to say that the potential evidence of crimes that you carry in your cell phone get more protection than a briefcase with the same information (photos, ledgers, address book, etc.). Which, in my opinion, is hard to justify, and might be taken the Supreme Court.

Good argument to lock your phone

[Anonymous Coward]

Phone locking is not really secure, but at least it will stop an officer on the street from going on a causal fishing expedition through your phone.

They would either have to make a court compel you to give up the password or call in forensics to crack the phone. Either way the, there will be more oversight and more time for you to get a lawyer involved.

Reading comprehension

[DragonWriter]

Seems quite plain to me that someone's address book is part of a person's "papers and effects", and therefore would require a warrant to search.

Read the text of the amendment which you posted: the guarantee regarding "papers and effects" is against unreasonable, not warrantless searches. The second clause governs the conditions in which warrants will be issued, but does not state that warrants are required. Warrants are (despite the absence of any express requirement) generally held to be presumptively required for reasonableness, but there are a number of exceptions to the warrant requirement (but these are not exceptions to the reasonableness requirement.) Search of the person and immediate vincinity of an arrestee incident to arrest -- including closed physical containers -- is one of those circumstances that has been established as an exception to the warrant requirement (largely, justified by public safety concerns with the possibility of physically dangerous objects, including those that might be concealed in a closed container.) This ruling is that that concern does not apply to data in a cellphone, so the phone can't be searched without a warrant.

Analogous

[Anonymous Coward]

Wow.

they assert that current-generation cell phones are much more analogous to personal computers

Analogous?! That's like trying to explain that a Honda Civic is better than Toyota Corolla (or vice-versa), and if someone doesn't understand your point, you resort to a car analogy.

Re:Analogous

[hairyfeet]

I'm glad I'm not the only one whose brain just froze and kept going over that line trying to find the logic. I mean, how in the name of all that is good can you argue that a cell phone is NOT a computer? It has an ARM based CPU, it has an OS, it has RAM and storage, it surfs the web checks email, hell if it is a so called "smart" phone it is actually nicer than the first half a dozen PCs I had!

This is why for anything tech they should have to bring in engineers who actually build and work on the things and float their "opinions" by them, because I doubt any cell phone designer or manufacturer would have been able to handle the illogic of that statement. Hey, does that mean if I get one of those ARM based netbooks, would the law treat it as a cell phone, or as a laptop?

Many cell phones are physical containers.

[Khyber]

"The argument of the majority contended that a cell phone does not contain physical objects and therefore is not a container."

SIM CARD. BATTERY. MICROPROCESSOR. RAM. PCB. THOSE ARE PHYSICAL OBJECTS.

Looks like the majority of these judges are ignorant of the very language they are using. How/why are they in the position they hold, again?

funny,

[jtgd]

I just find it interesting that whether or not a cell phone is a container that holds objects -- something one might discuss with their two-year old -- is being debated in a state supreme court.

If a cell phone is not a container

[Opportunist]

then a computer is not a container. Neither is a hard drive. Neither is anything containing data.

OTOH, if it is a closed container, you would have to surrender necessary keys (in the case of data, to decrypt it) if a warrant is present.

I have an observation/comment

[joocemann]

If the device and system didn't even exist when the laws were written, then how in the hell can the laws apply at all?

I'm simply saying that the law and intent of the law had no knowledge of this device and/or its components, systems, data, etc, and thus there is no way to interpret or discern from the law that it had any purpose in this matter.

I'm also not saying that anything new should be lawless. Quite possibly I am suggesting that our laws should be kept modernized, in current language, and reauthorized by necessary powers (like congress, etc --- whoever passed/made the older version).

I'm sick and tired of seeing all these crazy incidents where strange and outright wrong interpretations and charges are being made. That myspace harassment case was one of them. This case, regarding search and seizure, also seems to apply.

Get with it lawmakers and officers! Let us know what you expect and plan to do before charging us and impacting our lives in unexpected ways simply because you've been too lazy to keep your job and duties CURRENT. Yes, I can call cops and lawmakers lazy. I was in service to our country, too, but I didn't go home when more work was needed; I did my effin job!

Analogy: An Address Book?

[zigmeister]

I couldn't be arsed to read the other comments to see if anyone already addressed (harr harr) this, but did that other judge seriously compare a cellphone to an address book? I have a couple problems with this.

An address book can contain: a list of people you know, their contact information, their place of residence, a schedule or planner, some offhand notes and a couple local maps. Most address books of friends and family I have ever seen are never this complete or detailed. Typically, all the people he or she knows are not in there, what people are in their perhaps only an address is given or only a phone number and so forth. Also I have never seen nor been aware of an address book sold commercially to the consumer market that was lockable by the user with a unique passcode, nor an address book that could participate in a communications network.

A cellphone, and I'm going to go with the highest common denominator here* (i.e. a very well powered and feature packed device such as an iPhone or Blackberry) can contain a list of people you know, both on the phone hardware and through network services, their contact information, place of residence, other extensive information about them, a record of your communications with them, via phone, text, email, chat and other various services, a record of where you've been, a record of what you have searched for on the 'net, and various images and videos which may be user-created. A very good deal of contact with said people and the various networks takes place through this device, and a lot of contact that doesn't is still viewable and searchable through it. Some consumer devices, and various services on it separately, are lockable with a unique password (i.e. this isn't software only available to the CIA director, it is cheaply and widely available), are much more fragile than a dead paper book, and could and can be much more central to the operation of a family or business than an address book ever was, and overall can currently contain up to 32GB of data compared to the paltry amount that could be reasonably contained by an address book. Also, data on the various people known by the owner tends to be more extensive (e.g. through Facebook, instead of individual entry on each phone) and more people tend to be included in the lists of "known contacts." So how the hell are they comparable?

*I'm going with the "highest common denominator" because if you're going to set a precedent, it would probably be wise to set one that is relatively future-proof, and doesn't assume anything about the limitations of the device that would be unreasonable. In other words, it's somewhat unreasonable to assume that a phone wouldn't be able to use a IM service just because there are good deal of phones that can't, phones which are probably going to become more rare (at least in terms of functionality) and some can, so the issue should be addressed.

Re:Analogy: An Address Book?

[zigmeister]

Okay, I should have said spanning set or some such since highest common denominator doesn't really make sense, but you get the point.