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."

Comments

Computer that happens to be a phone

[Culture20]

Glad I use an iPhone and it's really a computer.

Re:Computer that happens to be a phone

[Thing 1]

"At first they came for the druggies, but I" -- oh wait.

Re:Computer that happens to be a phone

[partofthepuzzle]

I'm glad to see that it seems that haven't been arrested.

If you had, you would find out that in almost every circumstance, you will NOT be allowed to make a call using your own phone. There may be exceptions if it's a very minor situation or the rare compassionate cop, but I would NOT count on it. Your phone WILL be confiscated and inventoried, along with all of your other belongings, and you will NOT get to see it again at all, until you are released.

BTW, this has implications beyond the possibility of your phone being searched. How many important phone numbers do you have memorized these days? Maybe 2 or 3 "important" numbers? What if those folks don't answer? In most urban holding cells (where you'll spend up to 24 hrs when you're first arrested, before going to other areas of the jail), there's a phone that everyone can use to make as many free calls as you would like. The catch is that the calls are usually limited to the city or county limits. If the numbers you have memorized are outside the calling area you are SOL. Oh yeah, they always have the bail bond numbers posted by the phone, so you could get out in a few hours on your own, IF you have a few thousand bucks to spare (most cities have drastically increased minimum bail amounts in recent years and it's very common to find even minor, non-violent, misdemeanor crimes with bail in the $10-$30k territory = $1-$3k for bond, which is $ you will never see again).

My advice: memorize a dozen or so cell phone and landline numbers that you will want to call in any emergency (believe it or not, there are some jail phone systems where you can only leave messages on landlines!). If you are stopped in your vehicle, try to make a call ASAP, before you may be asked to get out of your car and before there is any chance of being arrested and the cops taking your phone. Write important numbers on your hand or arm if needed. If you're taken into custody, you will most likely have to change into jail clothes and you'll lose access to any paper you had in your pocket, etc.

Last, if you're thinking that as a 1000% law abiding citizen, that none of this could happen to you, think again and bear in mind that guilt is NOT criteria that determines one's vulnerability to arrest and the even the most innocent citizen could possibly find themselves in a situation where they are arrested.

Re:Computer that happens to be a phone

[conspirator57]

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.

But hey, the democrats think it's just a piece of paper and the republicans think it's a suicide pact.

i think that long term, our society's abandonment of the constitution is the real suicide pact.

Re:Computer that happens to be a phone

[virg_mattes]

It's a nice thought, but most officers will drop the phone into a "safe bag" when they take it, which is like a static shielding bag, and will prevent remote contact with the phone. Therefore, after it's been confiscated it's unlikely (possible, but I wouldn't want to gamble my freedom on the odds) that a remote wipe will work, since the phone will be in the bag until they take it out to search it, and they'll do that in an evidence room that's also a Faraday cage, to prevent exactly this sort of thing. Remote wipe is great for clearing data in case of theft, but the police are generally wise to the evidence-destroying implications.

Virg

Re:Computer that happens to be a phone

[RsG]

What really strikes me as profoundly stupid about the whole "warrantless" business is the fact that warrants are not hard to get. If someone's arrested for possession (which is the sort of thing TFA is referring to) it should be trivially easy to get a warrant from a judge to search the individuals home, car, cell, computer, whatever. Making it warrantless means that the cops can go "fishing" for evidence of a crime when the bring someone in on a trivial charge, like traffic violations.

Put another way, if the cops actually have good reasons for pulling data off a cell, the existing legal framework will let them do that easily. And if they don't have good enough reasons to go before a judge, why on earth should they be allowed to proceed?

Re:Computer that happens to be a phone

[Duradin]

For recent examples I blame 24 and Law and Order: SVU for convincing the masses that extraordinary ticking time bomb and [insert trendy 'vulnerable' group here] in imminent peril from evil mastermind [murderer|rapist|deviant] scenarios are very ordinary. People think this so to get [re-]elected politicians show how tough on crime they are by cutting the 'red tape' that 'protects' the criminals.

Re:Computer that happens to be a phone

[enjerth]

Probable cause? Like arresting you for resisting arrest?

You can be taken into custody and held without charge for what, up to 48 hours? And there are enough laws out there that they could probably arrest you at any time for a number of things. So they can seize and search your phone, laptop, and any other possessions you have at any time, all without a warrant, should they decide that you're worthy of investigation. All they have to do is come up with some reason to arrest you. Like maybe for sneezing too loud in public.

Passwords

[HaloZero]

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.

Re:Passwords

[joh]

What if my device is password protected? Can I be compelled to hand over the password? Because I won't.
 

What do they need the password for? They don't want to use the thing, they want the data. As long as you don't have your data encrypted having the device is more than enough for them, no password needed.

Re:Passwords

[Hoplite3]

You can be compelled to hand over a password, but it requires a court order. However, in the case of having your phone taken when you are arrested, the police don't need your password to see your data if it is unencrypted. They'll just read the phone memory with another device.

Generally, it's easy for the police to seize your property, relatively risk-free for them to damage it, and difficult for you to get it back in a timely fashion.

You can thank the drug war.

Re:Passwords

[localman57]

Even if it is backdoored, it probably isn't going to hurt you. If there is a secret backdoor in blackberries, AES encryption, etc, then the government isn't going to piss away that secret in order to bust some drug dealer or guy trading child porn. A backdoor like that would only be used in cases where you wanted to keep its existance secret, such a national security / espionage operations.

Re:Passwords

[commodore64_love]

It's probably a bad idea to put a lot of information into a cellphone anyway. It's too easy to lose, or get pickpocketed. I'd rather keep my information secure in my house and only use the phone's storage sparingly (or not at all).

BTW in the UK refusal to provide a password or passkey to decode an encrypted device is punishable with several years in jail. You have no right to remain silent in the UK, and it's beginning to look like the US is headed down the same path.

Re:Passwords

[Idarubicin]

Because as bad as police can be, the alternative (not having them) is much worse.

I'm not entirely sure how you get from my statement that police should not employ selective enforcement as a means to arbitrary powers of search and seizure to the conclusion that I believe the police should be disbanded.

Perhaps you've been (mis)led to believe that it is impossible to criticize someone or something you generally endorse? Is unconditional support (or, conversely, absolute rejection) the only possible response to all the actions of police -- or of politicians, or lawyers, or judges, or reporters, or doctors, or priests? Surely we're capable of more nuanced analysis. "Either you're with us or you're against us!" is a cheap rhetorical trick that works well in televised soundbites, but has no place is rational debate.

Whole disk encryption and laptops

[betterunixthanunix]

It won't be long before we see another court case concerning a defendant's right not to disclose his whole disk encryption passphrase.

random searches for low-level crimes

[digitaldc]

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!

Re:Online services

[betterunixthanunix]

What if you store everything on the net?

Then you forfeit your rights whether or not you are arrested.

Re:Get thee to the Supremes

[RobertM1968]

The difference is that it happens to be on your person at the time of your arrest, and you lose the constitutional right to privacy when you are arrested. I suppose the original idea was that the police would be able to search your bag for weapons, or something like that, and it has (like so many others) been blown way out of proportion.

No, not entirely accurate.

That's not the difference when it comes to smartphones (regular cell phones or semi-smart phones, yeah. If someone had my Android phone, they'd have full and free access to my gMail account, PayPal account, online photo albums, social networking accounts, address book (including the non phone portion such as Google Contacts) and so much more. And for many of my friends, it would also be unrestricted access to their home and/or work computer.

Therein lies the problem with this ruling (unless the court decided to differentiate between "dumbphones" and "smartphones" - but as I've already read one linked article (albeit for a different /. post), I've already done my quota of RTFA and don't know if he made that distinction. I'll just assume he didn't, as I believe policy is here....

THUS... this is a big problem and a big privacy violation for the millions of people who have smartphones.

So they can search the phone only?

[whoda]

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.

They were jealous

[houghi]

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).