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Calif. Appeals Court Approves Cell Phone Searches
Local ID10T writes with this excerpt from The Blaze: "In a case explicitly decided to set a precedent, the California Appellate court has determined
police officers can rifle through your cellphone during a traffic violation stop. ... Florida and Georgia are among the states that give no protection to a phone during a search. In particular, Florida law treats a smartphone as a 'container' for the purposes of a search, similar to say a cardboard box open on the passenger seat, despite the thousands of personal emails, contacts, and photos a phone can carry stretching back years. But after initially striking down cell phone snooping, California has now joined the list of states that allow cops to go through your phone without a warrant." Interesting additional commentary, too, from UCSD law professor Shaun Martin.
Mine has a passcode on it. Problem officer?
Don't give them permission to search your car.
As a result of the Court's ruling, the legislature overruled the court by passing a law that provides privacy protection for mobile devices.
See http://www.californiality.com/2011/09/california-mobile-device-privacy-law.html
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iPad or laptop?
What if your device contains attorney-client privileged material or other sensitive documents?
They get a very sanitized version of the phone, you get to keep your privacy - all while complying with their order.
Twitter supports and protects racists - by smearing their critics with the "Hate Speech" label.
Here's a link to the actual opinion: http://www.thenewspaper.com/rlc/docs/2011/ca-phonesearch.pdf
I assume that if you password-protect your phone, you can refuse to give the password to the police since it might be a violation of your Fifth Amendment rights -- right?
If you reply, do so only to what I explicitly wrote. If I didn't write it, don't assume or infer it.
Dead Kennedys for Emperor. That is all.
Turn on device encryption & set a password.
The contents are now protected with AES - good luck cracking that.
and if the content on your phone is encrypted, can they force you to give up the keys? all because you ran a stop sign this is quite stupid. cops aren't qualified to do computer searches. you can hide stuff on your phone they will never ever find
If the police must act on specific grounds, then there's a defensible (and correspondingly, attackable) justification for the action. If the police are simply given an additional, flexible and wide-ranging power (perusing your cellphone) to use whenever a completely irrelevant situation (a traffic stop) arises, then there's a massive opportunity for abuse. You can probably guess whose cellphone pics are more likely to get snooped through on a traffic stop.
No kidding!!! What do you say at this point?
My next phone will need to have full-disk encryption. I could do it on my N900 but it's a massive amount of work and I can't spare the processing power either.
"When information is power, privacy is freedom" - Jah-Wren Ryel
Nothing stopping you from getting a pay as you go phone filled with messages about how much you love police rifling through your contacts and emails. All contacts are for dunkin' donuts in a 50 mile radius. Switch real phone off, turn honeypot phone on. Jobs a good 'un.
If you get busted over here (small-ish country in yurp, I'm sure the neighbours aren't any better), then you can count on the police searching your home and whatever else of yours they get their grubby mitts on just in case, for nashonal shecurity, or some such other reason. Partly in response to all this anti-terrorism pressurizing of governments a certain country has shared with the world. So yeah. You go and clean up the mess at home and then change the tune you're pressuring the rest of the world with back to liberty and the pursuit of happiness for all, not just for haliburton contractors with american citizenship, please.
Maybe I'm missing something, but most of the outrage I see on the original story's comments is about the idea that you get pulled over for speeding and they'll go through your cell phone. It reads to me like as part of arrest processing instead. Which means if you are just getting a warning or a traffic ticket this doesn't apply. Initially I thought it was going to be a story about how an officer looked at a phone's history to see if the person was texting while driving, but this I don't think that is it. If something is in your car when you get arrested, it's part of a natural search area. If there was a locked safe in the trunk, they'd be opening that too. Why is cell phone more important than a safe?
"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."
If this doesn't cover a cell phone carried on your person, it doesn't cover anything. We should really be more careful when we choose judges. We need to make sure they all know how to read.
The courts are moving in the direction of greater and greater corruption. At least there was a bright spot recently when an appeals court said that calling the video taping of the police "wire tapping" was an outright lie by the law enforcement community. Clearly that judge doesn't get it.
Is the device considered open if it is password protected? Or can you be forced to give the police your password so they can look through it?
a recent ruling threw out evidence collected from a person computer because the cop moved the mouse which in turn disabled a screen saver which in turn revealed incriminatory evidence. So if your phone is not displaying anything it may not be able to be searched.
In other words, a pass code with a neutral background may be sufficient to protect you should it reach court and something on the phone was incriminating.
http://volokh.com/2011/09/27/taking-a-computer-out-of-screensaver-mode-to-see-suspects-facebook-wall-as-a-fourth-amendment-search/
Also this site, http://www.fourthamendment.com/blog/ is not a bad resource when you want to see what happens with search and seizure cases.
* Winners compare their achievements to their goals, losers compare theirs to that of others.
So... What if the phones has login information stored on it to access data at a remote location. Do they get to search the data at the remote location, just because the phone has access to it (but it wasn't stored on the phone).
Wouldn't this be like searching my house, because I had my key on me?
As Stallman said, "Cell phones are Stalin's dream". Yes, you young whippersnappers, you can survive without a cell phone.... But I am sure the day will come where we will all be required to carry a GPS enabled phone (and a car transponder with GPS and a camera), but I plan to enjoy these last few years of freedom....
with the smashed screen. "Here ya go Officer Mister. Hey, what did you do to my phone?"
For every benefit you receive a tax is levied. - Ralph Waldo Emerson
Maybe it's time for the phone to go back to being just a phone. It'd certainly be cheaper, and this *is* a down economy.
Oliver's law of assumed responsibility: If you're seen fixing it, you will be blamed for breaking it.
Since California is a state with direct democracy through initiatives/propositions, I foresee a ballot measure outlawing this behavior in the near future. Say what you will about CA, but if we find something we don't like we'll circumvent the politicians and do it ourselves.
I now see a market for phones with a red button. Shift-Red Button resets phone back to factory spec and wipes SD card. Oops, officer! Here you go. (BTW, I know most smart phones come with a three-finger-salute, but a big red button looks so cool)
Why keep anything important on a smartphone to begin with?
Yes, it's nice to access my e-mails from months or years ago, and it's handy to have pictures on the SD card, but if you're concerned about privacy, why not set the your phone up to have e-mails forwarded from an account with a password that isn't stored on the phone, and to delete messages shortly after they're read? That's how I manage mail on my phone and it works well enough for my purposes.
I suspect there are similar ways to offload calendar, contact and photos for anyone paranoid enough to need that. If someone snarfed all the data off my phone, they'd get at most 24 hours worth of e-mail and about 30GB of classical music. C'est la vie.
-- I wanna decide who lives and who dies - Crow T. Robot, MST3K
just have a second phone that is loaded with goo and when the cop takes it back to his cruiser, super glue spreads out of it and he can't get his greedy hands off the 'evidence' ha ha ha ha ha... or rather oink oink oink oink oink
Cell phones, laptops, flash drives, disks, and tapes are not "containers" because you cannot put any physical object into them. This is clearly what they 4th amendment means by "papers." I can't imagine what a police officer would search for in your cell phone if you are stopped for a traffic violation. Why would they even *want* to look?
Just a reminder here:
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.
Can someone explain to me what an officer can search your without a warrant, based on the text of the 4th amendment? The officer did not have a warrant, made no oath or affirmation, and did not describe the place to be search or the things to be seized. My instincts tell me that the authors of this text did not expect that a government employee could demand to search their horse or coach without a warrant. Am I mistaken here?
The federal constitution trumps all else. Even state laws. The constitution puts a limit on the powers of the government. In this case, the 4th Amendment basically states that the government can NOT search you, your house, papers, or effects with out cause and that warrants must be granted by Judges. Over the years there have been a number of court cases that have refined the specifics of the amendment, allowing officers to perform weapon searches, etc...
These laws will >hopefully be overturned if they ever get infront of the Supreme Court as it seems like a direct violation of the 4th Amendment.
-Rick
"Most people in the U.S. wouldn't know they live in a tyrannical state if it walked up and grabbed their junk." - MyFirs
The police state grows like a cancer. You are stopped for a minor traffic infraction and now your personal papers are theirs, next they will water board you to see what you are hiding. Stalin and Hitler would be proud of what is happening to my once great nation. I am very unhappy and sickened.
You mean those new-fangeled things all the kids have these days? I must have left it at home again, sorry officer!
What do I know, I'm just an idiot, right?
Its a California state court ruling that has already been overturned the California state legislature. Contrary to comments on the Original article site, Obama is not to blame for this.
Maybe the citizens would actually win this shit if they cited the proper amendment in their cases? This is not a 5th amendment issue. This is squarely 4th Amendment and yet people keep using the 5th to fight this shit...are people really this dumb?
A very simple solution is so obvious as to be overlooked by those blinded by gadgetry. The solution I am talking about, of course, is to go low-tech. Downgrade the handset to a simple phone-only (single purpose device, how quaint!) unit. I would prefer a monochrome display one at that so I can see it in sunlight like my first cell phone, but that's an aside. I have not yet owned a smart phone and the way things are progressing I doubt I ever will. There is no law (yet!) that requires a person to carry one. So why? These things suck at pretty much everything they do, especially making phone calls. They are terrible cameras, terrible computers, terrible TVs, terrible GPS receivers, terrible music players and terrible phones. And on top of it all they provide a single point of failure for your privacy. So, stop the wining and throw away the unnecessary gadgetry that is more cool than useful.
UCSD doesn't have a law school. USD is the Catholic school on the hill over Mission Bay with a very fine law school.
In the interest of candor, I am an alum.
Used to know a guy with a business laptop that had 2 SSD's in RAID1 and ran Truecrypt. His Cell had encryption software on it as well. Why the !@$!$!# would he let a cop know the passwords to the critical systems of 100+ Clients?
Cop goes to pull you over; pull the battery, reinsert, and stuff in pocket.
Cop: "Why isn't this working"
Driver: "I don't drive with it on officer, it's a distraction"
*Cop powers on phone, see's password prompt*
Cop: "I need the password"
Driver: "I do not consent to any searches sir."
Cop: "You are going to give me the password, or else."
Driver: "And what, invalidate all of your evidence when I plead the 5th?"
Now, what pretext could they POSSIBLY have to search your phone during a traffic stop?
Problem with Non Upstanding White folks: They don't fight back. You file formal complaints when officer friendly is in the wrong, and you get detailed. Enough complaints about a peace officer with few convictions = a fired officer.
I seem to be the only one who wants a middle ground. Should the police be able to arbitrarily search through your cellphone?, no, unless they find other evidence of a crime, like say drugs or illegal firearms. Considering both were found while itemizing the car, it's certainly probably cause for a search. Anyone who is stopped, and either a) has nothing in plain-site warranting a search, or b) has their car being towed and shows nothing of interest, should be able to argue their circumstances are different enough to make a cellphone search unconstitutional.
Phones are not 'containers', a term which was invented by the supreme court to let cops look inside boxes next to people they were arresting. We can debate if that is reasonable or not, but the entire point of allowed container searches was there might be a weapon there.
Cell phones cannot have weapons in them. Well, actually, they might, and if a cop wants to inspect the physical casing of a cell phone, I have no objection. But they cannot have weapons in their data, the data cannot pose any sort of risk to the police.
They are, quite blatantly, as blatant as anything can be without being made of wood, what the constitution means by 'papers'.
Oh, and because they are, in fact, papers, there's something people have missed: What if a cell phone has privileged communication with an attorney on it? Mine does. (Admittedly, it's a civil suit, and would be of little interest of a cop...but they are still not allowed to see it.) Or privileged medical information on it?
And here's a fun question: What, exactly, is the legal difference between a cell phone and a tablet? (If someone says 'can make calls', I must point to Skype and 3G plans.) What's the legal difference between a tablet and a laptop?
Cell phones are document stores. They contain papers. The police cannot read those papers without a warrant.
There might be a few parts of the phone that don't count as documents, like incoming and outgoing call logs. That was the backdoor that allowed police to originally search, because that used to be basically all phones did.
But it's not any more, and as the logs on the phone can be altered and deleted, and the cell phone companies have much better records, so I don't see the point of allowing that. The only thing police should be able to demand they get from a cell phone is the phone number of it. And possible the SIM number or whatever, if they need that. (I.e., they only get to get enough info to uniquely identify it on the telephone network.)
If corporations are people, aren't stockholders guilty of slavery?
The reason it was towed was concern that it might be stolen if left by the side of the road. Yeah, right. I am sure that the "concern" was totally unrelated to the fact that towing the car created a situation under which it could be searched.
The real "Libtards" are the Libertarians!
As has been pointed out previously in this thread, this has indeed already been overturned. It's interesting to note the dates in both articles, however. The article detailing the overturning of the Cali Supreme Court decision is dated September 21...while the OP's article is dated Oct. 4th. And the OP's article is from where? The Blaze. Which is? The Glenn Beck-founded "news" site. Either it's plain shoddy journalism on their part, or disingenuous and deliberately incitant. Ahh, Glenn Beck. Why let facts and reality interfere with the agenda?
They can't search mine. I don't have one.
Do they have the right to search passenger's phones as well?
Why not just set a PIN number on your phone? Can you be compelled to give them that during a stop?
Iphone has a 10-strikes-and-your're-wiped setting - just blow it away before they have a chance to get the phone from you, or 'accidently' type it wrong.
I do wish it was quicker/easier than that,however.
Blackberry certainly has the 'wipe' feature on the device.
In the California case, it doesnt matter to Nottoli - he's dead now.
The strict constructionist would say that the text of the Constitution did not protect the founders' iPhones, therefore it doesn't protect your iPhone. I'm not sure precisely what "effects" meant at the time of the ratification, but I'm pretty sure it didn't refer to handheld electronic devices. The "living constitution" folks would say that today's iPhone is the modern equivalent of papers and effects, and therefore should be protected. The idea of the living constitution is to adapt the broad principles of the constitution to modern circumstances. Seems like we could use more of that in this case.
You buy communist goods you get communism.
What do you people really expect.
Every time you from a communist you endorse and celebrate communism.
Your life eventually follows.
Just to clarify it's the law school at the University of San Diego, not the University of California at San Diego. UCSD does not have a law school.
According to TFA, the officer searched the man's phone while searching his car before it was impounded. These "inventory searches" are completely legal and happen everyday. So it should follow that this means an officer can search your phone whenever he legally search your car, not "anytime you are pulled over in the state of California".
Even if that were true, there's considerable evidence that the framers of the Constitution wanted ambiguities in the text to be resolved through the institutions created under the Constitution -- including, but not limited to, the federal judiciary -- in light of specific circumstances, rather than being limited to specific inquiry as to what the authors and ratifiers thought at the time of ratification.
But your claim isn't true; there's considerable evidence that providing guarantees againt State violations of some of the protections existing in the Bill of Rights was an integral part of the intent of the proposers and ratifiers of the 14th Amendment.
One argument made in the House of Representatives in favor of (and by the primary author of) what was adopted and proposed as the Privileges and Immunities Clause of the 14th Amendment was this:
That is, the specific problem that the Federal Constitution failed to protect against State violations of protections in the Bill of Rights like the protection against cruel and unusual punishments was part of the problem that the 14th Amendment, and specifically the Privileges and Immunities Clause, was directly designed to address.
(It's true that the case law of the 14th Amendment has drawn incorporation more from the Due Process Clause of the 14th Amendment, so certainly one can credibly argue, and many have, that the cases are technically wrong in drawing incorporation from this point, but its simply indefensible to claim that there is no evidence that incorporation was intended with the adoption of the 14th Amendment.)
I have many many pictures of the Cannabis variety of plants and flowers because I believe they are beautiful plants? I have never used Cannabis in any form, yet I am for the legalization of it. I have been pulled over and had my car searched (twice in the same instance). They didn't find anything on me, in my car, or on my two passengers, and even though I was unknowingly driving under a suspended license with an expired (knowingly) tag, they apparently got a call over their radio indicating a more serious call they had to attend to, leaving me to figure out how I was to get my now tagless car to my house.
No no no; you don't understand local politics; always follow the graft The reason it was towed was the same reason cars are towed all over the country; it is so that the polically-connected (i.e. bribing) tow companies get to charge you $100 a tow and $50/day storage fees (or a LOT more). The tow companies don't call it bribes of course but rather politcal contributions so that they can be on the all important "Tow List".
Clearly it means anything you have on you i.e. your stuff. So if you had a box with your diary in it, they shouldn't be allowed to search it without reason.
That's not the question, the question what is unreasonable, and when does the state violate the 14th amendment?
The Kruger Dunning explains most post on
I have only hangup in considering cellphones equivalent to a cardboard box: is it possible to delete data from a cellphone in the same way one can remove a letter, photograph, or business card from a cardboard box.
If so, then I have no objection to considering the two equivalent. There should be the same level of legal protection on both.
If not, then they are not equivalent. If you can't delete data from your cellphone, then, for many people, it is equivalent to having the information chained to your leg: getting rid of it without crippling yourself is practically impossible.
According to case law (though IANAL), the 4th amendment does not apply to anything that can be seen in plane view. For instance, if you have your curtains to your house wide open and you have a giant pile of marijuana on your table in plain view, police can search your house without a warrant because of 'reasonable suspicion' (even though I think its complete bull crap, it's still what can be done). The same holds true for anything. HOWEVER, they CANNOT search anything that is locked without a warrant as that DOES violate the 4th amendment and to my knowledge, THAT has at least been held up in court. So technically speaking, if the police do not have a warrant, they cannot search your locked cell phone, your locked trunk or your locked glove box (or whatever else you can lock) .. simply tell them to produce a warrant of reasonable search terms, and if they arrest you on the spot, any 1st year lawyer should be able to blow that case away ... Or at least that's what Law and Order has taught me (j/k), but seriously, just lock up your stuff .. I don't lock my stuff up or password protect everything because I'm afraid someone is going to steal my valuable property, that's the least of my worries .. I lock my stuff up so that it takes a literal act of congress to get to the information the police may want ...
"People should not be afraid of their governments. Governments should be afraid of their people." - V
It strikes me that during the first two centuries of this country's existence the people's representatives tried to guarantee and assure the people's liberty and for the last few decades they've been doing their best to undo all that fine work.
It strikes me that people tend to romanticize the past, but that if you really look into any of the history the factional struggles of the past (and the jaded pox-on-all-your-houses critics that charged all leaders with general ill-motive) in this country look remarkably similar to those today.
As a UCSD (University of California at San Diego) grad, I know there's no law school there. The professor who posted the analysis is from USD (University of San Diego), not UCSD.
Yup. Government, pretty much everywhere, has almost always been completely fucked. The times when it was not are very few. Granted, there's a lot of variation and degree amongst the fuckedness of governments throughout history.
I think that was the general idea back when. The premise was that all government is evil and that government which governs least is the least evil. We have to have government but we have to keep it chained and under control. That was the intention of the Constitution and the Bill of Rights which actually attempted to limit government. The asshats running things now just re-interpret the document to mean what they want it to mean.
Yeah, and now we've swung to the other end where most politicians (conservative and liberal) believe government is the solution to everything. The only real difference is that the liberals are open about it, while conservatives try to pass off their schemes to increase government as being "limited government" measures.
It is perfectly feasible, because you have touched on a grain of rice where you should be considering something more akin to the whole enchilada.
I once took an excursion to Reddit, and later HN. Unlimited up/down voting sucks when dealing with a hive-mind.
The recent judgement of the CA App Crt allowing what appears to be unlimited phone searches, if the reports are verified, is another example of the growing Court-approved fascism or totalitarianism in the US and the other so-called democracies. A fair and proper interpretation of US constitutional protections against unwarranted state/police attacks on civil liberties should have resulted in the lower court's judgement being approved, not set aside. The price of freedom is eternal vigilance and awareness. Thanks to Slashdot for reporting stories like this.
Jerry Brown vetoed SB914. Is it a coincidence that Brown received over $38k from the Peace Officers Research Association of California, over, 90K from police unions, and over 160k from the Sacramento County Deputy Sheriffâ(TM)s Association?
Fight Spammers!
Prof. Martin got this right. I'll put this more bluntly. I have experience as a criminal defense lawyer, a crime victim including armed robberies, burglaries, and illegal searches of privileged and confidential paper and computer client files, and civil rights crimes under color of law, represented an awful lot of child and adult survivors of mostly incestuous child sexual abuse, some of it, and other sex offenses, committed by politicians and officials palmed off on us by both political parties, and trying to get various authorities to shut down wide open drug dealerships the police admitted knowing about, which led to such searches and state and federal civil rights crimes. I cannot imagine how the California Court of Appeals got this so wrong and hope the decision is overturned on appeal. Your cell phone, your computer, your USB flash drive, and your ISP, off-site backup service, etc.'s records from these, are the modern equivalent of the Founders' roll-top desks and their journals in their saddlebags. If they really had enough to make a search of the subject's cell phone "reasonable" under the 4th Amendment's guarantee--not grant--of fundamental natural human rights, they could apply for a search warrant, only rarely denied, but apparently didn't. The so-called "war on drugs," or whatever the Obama Administration is calling that this week, is a sham and a scam. You don't have to look beyond the DEA Web site to see that everyone knows we have been and still are losing, and the money, like a lot of the rest of the federal budget, is going into the politicians' and officials’ pockets. With several of us neighbors, and uniformed police, having witnessed the buying and selling of crack cocaine on this block across the street from a state university and in plain sight of a police station, I went all the way up the chain from local to county to state to federal DEA to the White House Drug Czar’s office, under both parties, and every one of them refused to act. After nearly two years, I finally got Building Inspection to close it down. The argument that eroding First and Fourth Amendment and other fundamental rights to privacy implicated by such searches is either reasonable or right on the theory that it might tend to help fight this fake "war" is specious circular reasoning and an outright lie. We started to go off course when the Supreme Court was persuaded to hold that your bank’s copy of your checking account records, which reveal your religious, political, medical, and other relationships, were not yours to control and you had no standing to object to their rummaging through them without a warrant. We went farther down that wrong road with holdings that upheld laws that allowed police officers complete and unreviewable discretion to take your wife or daughter to jail, where the could be strip-searched, and maybe body-cavity searched, if that was standard practice, but issue a summons to somebody else, for a traffic violation, conviction of which carried no jail time as a penalty, or, for that matter, for a million-dollar embezzlement or insider trading scam. And we went completely off into the swamp with a Supreme Court holding that the officers’ motive and intent in anything they did that could arguably be brought within the outer range of their authority, tested solely against their version of what they saw or heard, was irrelevant and could not be questioned in criminal or civil court. It’s almost impossible to win a federal civil rights case if the officer says he didn’t know or think what he did was unreasonable, such as if smart phones were new technology. There are other cases where they have erred the other way. Don’t kid yourself that the honest person has nothing to fear from this erosion of privacy. The now-familiar warning that “Anything you say can, and will, be used against you in a court of law,” is all too true in practice, whether you are innocent or guilty. There is something practically everybody would do almost anyth