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Police Can Search Cell Phones Without Warrants
Hugh Pickens writes "The California Supreme Court has ruled 5 to 2 to allow police to search arrestees' cell phones without a warrant, saying defendants lose their privacy rights for any items they're carrying when taken into custody. Under US Supreme Court precedents, 'this loss of privacy allows police not only to seize anything of importance they find on the arrestee's body... but also to open and examine what they find,' the state court said. The dissenting justices said those rulings shouldn't be extended to modern cell phones that can store huge amounts of data and that the decision allows police 'to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee's person.' Interestingly enough, the Ohio Supreme Court reached an opposite conclusion in a December 2009 ruling that police had violated drug defendants' rights by searching their cell phones after their arrests. The Ohio-California split could prompt the US Supreme Court to take up the issue, says California Deputy Attorney General Victoria Wilson, who represented the prosecution in the case."
Glad I use an iPhone and it's really a computer.
What if my device is password protected? Can I be compelled to hand over the password? Because I won't.
If I cannot be compelled to hand over encryption keys for other forms of media, I'm not giving up a password to my mobile device, either.
At the same time, if they elect to seize and search my backpack, which is also locked, they have the option of breaking the lock to gain access to the contents. But is that legal? At that point, you're also destroying my property in the process.
Are these 'law enforcement officials' permitted to install software on devices in the course of conducting a 'search'?
Sticky.
Informatus Technologicus
It won't be long before we see another court case concerning a defendant's right not to disclose his whole disk encryption passphrase.
Palm trees and 8
I am governor Jerry Brown.
My aura smiles
and never frowns...
Dedicated Cthulhu Cultist since 4523 BC.
If I'm arrested (not convicted, nor even charged), you don't get to perform a random search on my house without my consent. Why is a small, handheld electronic device any different?
Just because it happens to be able to make phone calls?
Monday's ruling upheld the drug conviction of Gregory Diaz, arrested in April 2007 by Ventura County sheriff's deputies who said they had seen him taking part in a drug deal. An officer took a cell phone from Diaz's pocket, looked at the text message folder 90 minutes later, and found a message that linked Diaz to the sale, the court said. Diaz pleaded guilty, was placed on probation and appealed the search.
WHEW! I feel SO much safer now that these low-level drug dealers are getting arrested and searched. I can now walk the streets safely knowing that these minor crimes are being prosecuted with probation sentences and bonus cell-phone searches.
I think we should just randomly pull poor people over and search everything they have including their cell phones and hopefully we can find SOMETHING to bust these criminals with!
He who knows best knows how little he knows. - Thomas Jefferson
Guess who they will side with. Go on, guess! Hint: rhymes with 'duck leedom.'
weinersmith
It becomes all too easy to track down a suspect and wait until he's moving his laptop around to arrest him then and search his computer without that pesky warrant procedure.
What if you store everything on the net? Do the police know where the line stops, and only search the phone? Can they go on to rummage through your Facebook/LinkedIn/Exchange data?
This, of course, assumes you do everything online and you don't keep replicated synced copies on your phone.
Most of the contacts in my phone are not by name but by nickname (and for some of them, I do not even know the real name). And some of their nicknames can be quite easily misunderstood.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
What happens when they use the phone to log into email and facebook accounts to retrieve information that is NOT in the phone?
The police can't go enter your house just because they found the key in your pocket when you were arrested, they need a separate warrant to do that.
...then they shouldn't have gotten arrested.
Of course, not owning a smartphone could become probably cause for a search warrant some day, since you must obviously have something to hide.
of what the TSA was able to do.
You know some of the rights you still have? Enjoy them while they last. They WILL be taken away from you. And for those who tell you to contact your representatives or vote differently: those are the exact same people who voted for this.
What is needed is actual use of the 2nd amendment and trow all politicians out and start over. The first time it worked. The government was disliked and was thrown out.
I know it won't happen. Not until it is too late. It has happened before (also in other countries) and it will happen again (also in the USofA).
Don't fight for your country, if your country does not fight for you.
The judges that ruled in favor were not considering that when a person is taken into custody searched and examined, it is not for personal information, rather the safety for the officers and the accountability of returning and cataloging the property.
"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."
Obviously an immediate arrest is slightly different, but I would say after the arrest they could get a warrant. It wouldn't be impossible and actually quite easy.
Slashdot's rate-of-post filter: Preventing you from posting too many great ideas at once.
So what if the phone is stolen? Does the person who originally owned the phone get to be violated twice, once when the phone was stolen and again when the cops go through their personal data? Actually I could see the cops doing exactly this, basically hire someone to steal a suspect/famous person/chief's ex-wifes phone and then "arrest" the person and go through the "stolen" cell phone getting whatever incriminating evidence they damn well please without all the hassle of having to go get a warrant.
Monstar L
So if the police can search not only the phone in a physical sense, but check the data on the phone or even remote connections to data not on my phone, doesn't that mean other items that 'access property' could be seen the same way? I have keys to my car and house those items are 'on my person' and can access my car (information) and my house (more information). Setting a precedent like this is not far fetched, I mean look at the new health care law (like it or love it) the federal government says it can make every US citizen buy a product because the precedent comes from the federal governments ability to regulate trade between states.
The constitution couldn't foresee computers or the internet (not that it needed to), but look at what the government does with individual rights when there is perceived uncertainty about peoples rights as it relates to data, we have none.
This is a slippery slope.
"In God We Trust, All Others Pay Cash"
Is that you, Eric Schmidt?
you're right they should resist arrest
You don't have to be GUILTY of a crime to be arrested.
It makes no sense to allow this as it only gives police incentive to arrest persons not doing anything illegal with bogus charges that later get dropped and gives them an opportunity for a fishing expedition for other charges. There are so many asinine laws these days, I'd guess if you show me a citizen with a phone, I can show you someone breaking a law somewhere.
"All suspects are guilty. Period. Otherwise, they wouldn't be suspect!"
That's also why I was wondering about why it at all matters what the defendants are charged with. Your constitutional rights don't change based on what you're accused of (although it can make a difference regarding whether those rights are violated, e.g. terrorism accusations).
I am officially gone from
This is great news! So when does season 6 of The Wire start?
Well, I would say thats a very interesting thing to do. Part of me wants to disagree with it, but then I realize that they generally do have a reason anyways. For example, doesn't that deprive them- just a little bit - of the human need for security? Then I contradicted myself with the thoughts of the fact that they don't really deserve security if they are only mistreating it anyways. An interesting read!
If you're arrested carrying a huge briefcase full of papers with all sorts of personal details ... isn't that your fault for carrying the thing around and not writing the papers in code? And even more so if the briefcase doesn't have a combination lock?
But there must be probable cause to suspect you are.
Clearly, you're not familiar with police procedure.
And parent comment: woosh.
Right, because nobody who is innocent ever gets arrested or jailed. (sarcasm) BTW that saying works both ways: "If you have nothing to hide, then you shouldn't mind government snooping on your internet usage or phone or personal effects." "If you have nothing to hide, then you politicians shouldn't fear wikileaks or other online press."
"I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
The idea that you lose privacy when you're under arrest is not a hard one to grasp. They can search your pockets, they can search the bag you're carrying, etc.
they don't have a warrant, and your smartphone has an emergeancy 'self destruct data' app and you run it as you are being seized, then you cannot be guilty of any offense to do with the destruction of your records.
Your constitutional rights do change depend on what you're accused of, though. In civil forfeiture cases, a technicality of law is applied that doesn't technically accuse "you" of a crime, but rather accuses your property of a crime, and it's used to violate constitutional rights of defendants. Some would argue that that's all it's ever used for, and I think they're right.
They have probable cause. They can search your car, your house, your library of congress if you happen to own one and get arrested while in it. Our problem is the courts treating electronic devices as something special like in the recent case where the man was arrested for reading his wifes email. We certainly don't want them to continue that trend. This is a good ruling for us.
I love the feature where number of bad logins wipes the device.
Note to pay per use providers, add this feature to your phone and it'll sell like hot cakes!
... innocent till proven guilty mean anything?
In theory, and ONLY in theory, the original arrest has to be lawful for a charge of resisting arrest to stand.
I really didn't think my dig at this offensive procedure was all that subtle. What is this, 4chan, where subtlety goes to die and every joke has to be explained?
One touch data destruction.
Or they'll just keep using disposable pre-paids.
That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage
Yes, and so does irony.
So if I call the police to catch the thief of my phone and they arrest him, this gives them the right to search through my phone. I needed this to be safe from those thieves!
Sounds like the blackberry is a winner here. I believe that the data on the device (discounting an SD card) is/can-be encrypted.
Is it the Fourth or Fifth Amendment that this runs roughshod over?
Are we reaching the point where we need a TrueCrypt implementation on Android?
I do get the Police point of view here, it's just another 'thing'. But so is my mind. Can they compel me to tell them stuff? No, but they can rifle through my belongings, no matter. And it can't be long before we see domestic police forces assert the same privilege that ICE does in searching incoming deices in citizens' possession.
The only protection against this is to guard our rights in all areas. Police must be compelled to both return these bits of evidence if no prosecutorial action is taken, must also expunge all data from their own systems, and must not share this with other agencies that would not also do the same. Fat chance, but we have to force police departments and all other law enforcement agencies to respect our privacy if they are not going to charge us.
This will not hamper the War on Terrorism. It will require multi-agency operations to play reasonably fair. Of course, that is currently impossible, so my proposal is a failure already.
Ah, yes, the Obama Administration has been a breath of fresh air amid the stale repression of the states. California of all places. Don't they see the hypocrisy?
deleting the extra space after periods so i can stay relevant, yeah.
Current standard, set by Supreme Court inaction, is that they can hold you for two years while they decide what crime you may have committed without violating your right to a speedy trial.
Thank you, George W Bush.
http://xkcd.com/538/
"I'm just here to regulate funkiness."
So, the old police practice was to plant something that wasn't yours on you before arresting you.
Will the new police practice be to plant things that are yours on you prior to an arrest? "Why yes, Your Honor, the defendant was carrying his laptop, dresser, closet, and kitchen sink in his pocket. Impressed the hell out of me, it did. I'd like to know where he got those pants."
To fight the war on terror, stop being afraid.
While a lot of good info is harvested from arresting bad guys and taking their phones, my industry at least pretends to wait until we are issued a warrant before we do anything with the information we get from the phones.
Using the info without a warrant is just bad law enforcement practice and will do more harm than good in the long run.
What do they need the password for?
Something else to accuse you of, in case they fail to prove the crime they hoped for.
Since a smartphone is really a gateway to your personal data, in much the same way that my keys give the police access to my house, do they need a warrant to access remote data in the same way that they'd still need a warrant to enter my house?
...searching you car if you're arrested for DUI. If its physically on your person after being arrested, I think its fair game. I know I'm in the minority on this, but I believe there is reasonable cause to search the items in your possession (wallet, cell phones, etc.) if you have already been arrested. Of course, I can already hear the throngs of anti-cop types that complain about cops arresting people just to get an opportunity to search your individual belongings. Not that I believe this happens as frequently as they'd have you believe, there’s an easy loophole here. If a judge determines that it wasn't an arrestable offense, then all evidence found after the fact be inadmissible in a court case against you.
I could be wrong, but either way, this should force a supreme court ruling in the matter.
Cellphones == cigarette packages? Is BadAnalogyGuy a California Supreme Court Justice?
A link to the actual ruling would have been nice: http://www.sfgate.com/ZKUI (PDF).
'If Christ had tweeted the sermon on the mount, it might have lasted until nightfall.' - John Perry Barlow
I had assumed that particular element of common law had survived in the US.
But it turns out that in most states, it just isn't the case anymore. When this article was written, it was down to only a dozen states which still recognised the right to resist a false arrest. Everywhere else, you just have to let yourself be arrested, hope to $deity that you don't get convicted of anything, and then discover that there's no effective remedy available in the courts because the government will claim immunity.
FGD 135
Just set it up so that when you give them a special anti-password, it reverts the phone to factory settings.
The court (outside the dissenting opinion) clearly made no distinction based on the amount of information stored on a smartphone and did not address the use of the phone to break in to systems outside of the phone itself. I hope, possibly in vain, that the latter would require a warrant. Read the ruling at http://sfgate.com/ZKUI
Hence my parenthetical comment that it can make a difference regarding whether those rights are violated. And I'm fine with disagreeing with SCOTUS on whether civil forfeiture is in fact a violation of constitutional rights, I say yes, because it's depriving somebody of property without due process.
I am officially gone from
So what's the law on computers, and should it apply to smart phones which are merely portable computers? Why or why not?
Your Liberal Overloards require that you relinquish your civil liberties at the border.
Yes, mod me down because I'm not a liberal. Thank you.
Hmm I wonder if someone could develop an app that modifies the password entry screen so that you could put in either; A) Main password to access phone functions, or B) Secondary password that basically wipes the data on the phone.
On the iPhone X number of bad password entries does this now, how hard would it be to modify that code so that you could have a second password setup to do this once that password is entered.
Could even make it more user friendly to require a second acknowledgement of this password once entered before it does it job. Sort of fail-safe option so you can change your mind if needed, but the person who has taken phone and put it in might not realize it.
"Curiouser and Curiouser...." -Alice
Can they open a sealed package or the mail in envelopes you haven't yet opened? If so, then it sounds like arrest allows a search of your person. I am not sure that is the case, however.
I was under the impression that the only reason they could look at what you have on you is because they inventory your personal items during arrest, which places them in plain sight. A sealed envelope could not be opened. In the case of your smart phone, it is a mailbox with personal correspondence that is not in plain sight.
To really put it out there, I'm not terribly concerned if your phone is set to show callers or display text messages, and as you're sitting in a cell, they happen to read an inbound text or see somebody calling in. Again, plain sight, and your cell phone is in the possession of the police. It's the same as if they glanced into the side window of your impounded car and read a note.
To keep these things fair, however, the *internal* content of your phone is like the inside of your car's trunk... they should only be able to search your phone without consent in the same kinds of situations that they can search the trunk of your car without consent.
"$30 for the One True Ring. $10 each additional ring!" -- JRR "Bob" Tolkien
I'm going to create an address book group called "Crack clients" and put the police chief's and mayor's home phone numbers in there, among others I don't like.
Then at least if I ever get arrested I'll have some entertainment to show for it.
What about a game based password? I don't know enough about SuperUser Root stuff, but what if your password was a level of something?
Bonus : Call the game Angry Citizen! Then when you describe the password procedure you can get yourself in more trouble!
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
What constitutional rights of the defendant? Property does not itself have constitutional rights only persons, and in those cases the property itself is the defendant.
If police seize a smartphone, do you think they will bother looking into the settings to determine if the emails are on the phone (POP) or in your house (IMAP|Exchange), or do you think they'll just read the emails?
As we slide quickly down into the abyss of tyranny, may we all scream with delight as we are "protected" from our own rights of privacy.
Wherever you go... There you are. B.B.
Just read Little Brother by Cory Doctorow - quite a number of parallels with the modern day US, looks like you folks in the land of the free might have some work to do to keep it that way.....
And this doesn't seem like an un-constitutional end-run around constitutional rights to you? The property is nearly impossible to defend, which is why jurisdictions like these laws so much; no messy complications like actually having to prove a case to a judge or jury.
This is why we hate you.
Is it just me or is anyone else glad all data stored to their memory card is encrypted in AES?
I don't care that all my data is legal and I have nothing to hide, they got no business snooping in my stuff.
Ofc the most I've ever seen a cop do to my phone is try to unlock it, discover it has a pin, take the battery out to check for drugs, and put it in a paper bag.
Looks like TrueCrypt is going to need to put out Android and iOS versions soon O.o
Is a cell phone any device that can connect to the cellular network? What about WLAN equipped laptops?
Is a cell phone any portable device that can make phone calls? Any laptop with Skype or other VOIP software would fit this definition.
... because if they're in a Faraday cage while they are looking through your phone, they're only seeing what's on the phone, not trolling through your Exchange/MobileMe/Dropbox/Flickr/etc accounts stored in the "cloud". And if they take the phone out of the cage to look at that stuff, the remote wipe kicks in.
People tend to forget that legally-obtained data is not the only data there is. If data exists somewhere, and worth money, someone is willing to pay for it, someone may be willing to collect it and sell it. We have a black data market, not to mention the corporate grey market. It's not just because it's illegal to access that nobody does. I believe a fair amount of data on us is simply available for sale from various private agencies, starting by marketing firms but extending to various other kinds, without even searching any object of yours at all. There's simply no telling how many people are secretly gathering data and selling it. I have seen an article on a detective that simply called up the cellphones of contacts in various companies and asked them for info, all routine at a prearranged price. Last numbers called? Last credit card purchase locations? Current cellphone location? No problem. That'll be $450, billed to your account. The police doesn't have that data, or that money, or that option, but other people do. Generally, the jealous wife or husband.
Build your own energy sources from scratch. http://otherpower.com/
... the passcode is a four digit number. It certainly would be possible for them to just brute-force it.
I was concerned when I read the sensationalist headline, but they can only search your phone after you've been arrested. Not really much difference between a phone and a wallet, except for amount of data.
'arrested' isn't a bright enough line. If you're caught climbing out of a jewelry store window and the cops want to search your bag, fair enough. If you're arrested for jaywalking and the cops want to search your briefcase, 4th Amendment flag down.
My God, it's Full of Source!
OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
... is that it's not what's on the phone itself, it's what the phone gets you access to - all your online accounts. Just reading the phone's memory isn't going to provide that.So they still need the court order to do any serious digging... at least so far.
So does that entitle them to search my gmail account via my phone? What about if I have dropbox on my phone, can they search my files? Are those files in my pocket, in the phone, or in a server somewhere else in respect to this ruling?
Innocent until proven... no that's not it. Guilty until... wait, no... How is that supposed to go in the US again?
all the way to the gulag.
Ultimately, your rights aren't what the politicians or your neighbor or whomever decides to give you. Your rights are the activities you will engage in regardless of what society or anyone else tells you. Want the right to not be a slave? Insist on leaving the plantation, even if they try and hunt you down. Want the right to vote? Insist that you will vote, even if "they" say they will arrest you. Desegregation? Refuse to obey those laws.
"They" are always going to say that they can take your rights away. The only way to overcome that is to respond by refusing to play along.
"Progressives" being "progressives", not sure why anyone is suprised by this.
Our state constitution has strong protections for privacy, and you can't even put a GPS device on a car or access the records without explicit permission.
And a warrant.
-- Tigger warning: This post may contain tiggers! --
I have a reason to be happy I'm in Ohio.
Xavier Rabourdin for president 2012
is there an Android app that wipes your phone whenever GPS data indicates it's entering a police station?
http://www.masturbateforpeace.com/
How come there is no full disk encryption on iOS or Android?
That is correct. Anytime you are not free to leave and the police officer detains you, then by law you are under arrest. It doesn't matter why the police officer won't let you leave, because he won't let you leave by law you are under arrest. He does not have to immediately charge you with a crime to arrest you. If you are in a traffic stop for speeding, you are under arrest. You are not able to leave at any time, thus you are under arrest. If you flee the scene, then the charge will be fleeing arrest.
Don't believe me ask any lawyer if you are technically and legally under arrest when you are not free to leave.
Here is how to know, and police don't like it, because they want people to be ignorant of the law so they can do whatever they want. Ask the police officer if you are free to leave. If he says no, then say since I am under arrest I would like to know what I am being charged with. If he says no your not under arrest, then say ok then I am free to leave, and I am going to do so. You can see the issue here. If you are not under arrest the police can't keep you from leaving, that is your legal right. If you are under arrest then you can't leave, and you should be told what your being arrested for.
That is the law.
installing remote control software that hooks up to your desktop on anything mobile you need to access confidential information with.
This has been true with respect to anything you carry across an international border with you for years. This is why "best practices" for confidential information means do not keep it on your mobile device, don't keep anything more controversial than your books and multimedia content on one.
Tech Public Policy stuff
I'll agree about 24 influencing people, though at least Jack Bauer was willing to pay the price of his illegal actions by fleeing the country. Also interesting that the show seemed to condemn a Blackwater-esque paramilitary group, so not exactly only pro-republican propaganda.
This looks like a good reason to use TextSecure if you have an android phone. Texts are stored encrypted on your phone, and if both sender and receiver are using it, texts are transmitted in encrypted form as well.
'The tyrant will always find pretext for his tyranny.' - Aesop's Fables
Might as well give everything to this government there taking it all away and telling us citizens how to live. The sad thing is more people are allowing it and so many more are just oblivious to the fact. It sad what the forefathers fought for, killed for and died for and were just throwing it away. Sad
What constitutional rights of the defendant? Property does not itself have constitutional rights only persons, and in those cases the property itself is the defendant.
Which is, of course, patently ridiculous. Unless you're in a Terry Pratchett novel and you were just run over by some luggage which is currently sitting in the corner looking incredibly innocent.
If only that made these laws a work of fiction.