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California Supreme Court Rules Your Cellphone is Subject to Warrantless Searches
- Thread starter dgstorm
- Start date
Due to the nature of the OP....Let's not get into a heated political debate.
I'd hate to ban myself.....
I'd hate to ban myself.....
Absolutely you can refuse. Just understand that it is also naive on your part to believe that a simple pattern lock cannot be defeated.
Doesn't really matter either way....They can always just subpoena phone records to see you were texting or browsing while driving.
Not if its determined to fall under one of the exceptions to the 4th Amendment rule.
Still needs probable cause...
Probable cause is only one of the exceptions, and from what I understand, this ruling is concerning the search incident to arrest exception.
The exceptions are:
1. Search incident to arrest
2. Exigent circumstances
3. Plain view evidence
4. Probable cause (Only applies in motor vehicles, not houses where a search warrant would be required).
5. Inventory search for a tow (again for a vehicle).
Also applies to Plain View also IIRC....
Absolutely you can refuse. Just understand that it is also naive on your part to believe that a simple pattern lock cannot be defeated.
Doesn't really matter either way....They can always just subpoena phone records to see you were texting or browsing while driving.
I would rather that than have my privacy roundly violated on a device that not only contains texts and phone records but also emails photos personal info etc.
tappin and a talkin
Couple of lawyerly points. First, requiring a warrant isn't denying the police the ability to search. It simply requires that a neutral magistrate, as well as the police office, believe that there is probable cause that the search will produce evidence of a crime. Police officers are no different from the rest of us. They sometimes get a little to close to what they are working on. There is no reason to not require the warrant in the situation of the Dias case as the police had the phone--it wasn't going anywhere.
Second point is that the reason for the exception to the requirement for a search warrant for seizing items incident to arrest is the urgency of the situation. Is the perp armed? is he going to destroy evidence? The seizure makes sense in that situation. In the case decided by the California Supreme Court, the phone itself wasn't contraband like the heroin in one of the cited cases. It wasn't a weapon. The police had custody of it legitimately. A system that protects all of use would require the police at that point to get a warrant from a neutral magistrate. I question whether they could show that there was probable cause to believe that evidence of the crime would be found on the cell phone. In the heroin case, the cigarette pack didn't feel right, didn't feel like cigarettes, justifying further inquiry. Did the cell phone feel like it had incriminating text messages? I don't think so.
Second point is that the reason for the exception to the requirement for a search warrant for seizing items incident to arrest is the urgency of the situation. Is the perp armed? is he going to destroy evidence? The seizure makes sense in that situation. In the case decided by the California Supreme Court, the phone itself wasn't contraband like the heroin in one of the cited cases. It wasn't a weapon. The police had custody of it legitimately. A system that protects all of use would require the police at that point to get a warrant from a neutral magistrate. I question whether they could show that there was probable cause to believe that evidence of the crime would be found on the cell phone. In the heroin case, the cigarette pack didn't feel right, didn't feel like cigarettes, justifying further inquiry. Did the cell phone feel like it had incriminating text messages? I don't think so.
Couple of lawyerly points. First, requiring a warrant isn't denying the police the ability to search. It simply requires that a neutral magistrate, as well as the police office, believe that there is probable cause that the search will produce evidence of a crime. Police officers are no different from the rest of us. They sometimes get a little to close to what they are working on. There is no reason to not require the warrant in the situation of the Dias case as the police had the phone--it wasn't going anywhere.
Second point is that the reason for the exception to the requirement for a search warrant for seizing items incident to arrest is the urgency of the situation. Is the perp armed? is he going to destroy evidence? The seizure makes sense in that situation. In the case decided by the California Supreme Court, the phone itself wasn't contraband like the heroin in one of the cited cases. It wasn't a weapon. The police had custody of it legitimately. A system that protects all of use would require the police at that point to get a warrant from a neutral magistrate. I question whether they could show that there was probable cause to believe that evidence of the crime would be found on the cell phone. In the heroin case, the cigarette pack didn't feel right, didn't feel like cigarettes, justifying further inquiry. Did the cell phone feel like it had incriminating text messages? I don't think so.
Eloquently stated.
tappin and a talkin
I would rather that than have my privacy roundly violated on a device that not only contains texts and phone records but also emails photos personal info etc.
Well, and unless the cop is a real jerk the subpoeana is probably not worth his effort. He might up the ante and say "well you can come with me downtown then" and I suspect your privacy isn't worth 2 hours of your time.
I imagine the SC will strike this down. I've not heard, nor can I imagine, a cop pulling someone over or arresting them and then combing thru their computer files. Not sure why a smartphone would be any different. Just like if you have a warrant for my computer I don't think you can peruse my financial info on there unless the warrant specifically includes financial records.
Mr. Orange 645
Member
I'll let you call me naive if you can illustrate to me how a police officer can, without a dedicated tool, unlock my phone on the side of the road.
tappin and a talkin
Not all tools are large immobile monstrosities permanently bolted to the floor of some sterile lab. The Droid I carry everyday has more computing power than the entire first space shuttle, yet it is very small and portable. I'll leave it at that.
Also consider this: Say the officer would have to complete the search off site at a later time, which is usually the case. The term "immediate search" also falls under the "reasonableness" standard. The courts could rule that in the case of a cell phone, "immediate" could include the time it takes to take the item to have the lock bypassed and then search it. Remember, you are under arrest at this point, and all of your personal property is being taken and logged into property, including your cell phone.
Another question that comes into play in this situation, is the reasonable person's expectation of privacy for the contents of their phone. I want someone going through my car no more than I want them going through my house, yet, my level of expectation of privacy in my vehicle (in the Court's eyes) is less than that of in my house. This is because your car is mobile, is surrounded by see-through glass, is operated in public areas, etc..
These are just a couple of the many considerations when making a ruling like this, which is why these things are not as cut and dry, us vs. them, as people tend to believe them to be. The Courts have a difficult job of balancing the rights guaranteed to the People in a document written by men who never dreamed of it applying to anything like a cell phone or a car, and also still allowing police to do their jobs, which in turn protects the rights of the victims of the crimes they are investigating.
This is an issue that will change and adapt with the times, as it always has.
And I didn't mean "naive" as an insult, and hope you didn't take it that way.
I suspect your privacy isn't worth 2 hours of your time.
Actually I am stubborn as an ox (as some of you may have noticed) and so my privacy would be worth a lot more than 2 hours wasted lol. I tend to dig my heels in.
tappin and a talkin
Mr. Orange 645
Member
Couple of lawyerly points. First, requiring a warrant isn't denying the police the ability to search. It simply requires that a neutral magistrate, as well as the police office, believe that there is probable cause that the search will produce evidence of a crime. Police officers are no different from the rest of us. They sometimes get a little to close to what they are working on. There is no reason to not require the warrant in the situation of the Dias case as the police had the phone--it wasn't going anywhere.
Second point is that the reason for the exception to the requirement for a search warrant for seizing items incident to arrest is the urgency of the situation. Is the perp armed? is he going to destroy evidence? The seizure makes sense in that situation. In the case decided by the California Supreme Court, the phone itself wasn't contraband like the heroin in one of the cited cases. It wasn't a weapon. The police had custody of it legitimately. A system that protects all of use would require the police at that point to get a warrant from a neutral magistrate. I question whether they could show that there was probable cause to believe that evidence of the crime would be found on the cell phone. In the heroin case, the cigarette pack didn't feel right, didn't feel like cigarettes, justifying further inquiry. Did the cell phone feel like it had incriminating text messages? I don't think so.
I agree with one caveat. It is not unreasonable, nor hard to articulate given training and experience, that dealers and users alike utilize their cell phones to further their criminal exploits, whether it be buying, transporting, or selling the drugs or contraband. So it is very reasonable to believe that the phone might contain further evidence. Just like a warrantless search of the passenger compartment of your car incident to arrest. It is reasonable and justified to believe that since people use vehicle to transport themselves and their contraband, that the car might contain evidence of the crime. The subject is already under arrest, and the car can be towed, but the Court has ruled that search incident to arrest is still not an unreasonable search.
I see both sides of this, I genuinely do. And I don't envy the guys (and gals) making the rulings. I'll be interested to see what the outcome is, for sure.
Whether or not your phone is password or pattern lock protected does not effect the need for a search warrant. The circumstances under which the search is executed determines whether or not a warrant is needed. If the US Supreme Court says cellphones are subject to a warrantless search incident to arrest, then it will not matter if you have a password on it or not, if the officer is able to bypass it on scene. The vice versa would also hold true.
Lol who lied to you....
I think I've been in my fair shares of pull overs... If your glove dept is unlocked they dont need warrant to search it, but let it be the other way around and its locked they need a warrant. So what would make a cellphone any diff? Know your Rights people...
Plus I'd just play dumb, "Sorry sir, I was just on my way to verizon as i've seem to forgot my password" What are they gonna say? Ok lets go together? Lmao....
I'll let you call me naive if you can illustrate to me how a police officer can, without a dedicated tool, unlock my phone on the side of the road.
tappin and a talkin
Not all tools are large immobile monstrosities permanently bolted to the floor of some sterile lab. The Droid I carry everyday has more computing power than the entire first space shuttle, yet it is very small and portable. I'll leave it at that.
This I know, however imagine the fact that any tool they would carry with them would have to be capable of unlocking phones accross operating systems and manufacturers. If such a tool exists I would be quite surprised and even then given the grand scheme of things I don't think the average police department would bother to have more than a few of these devices. At the very least if someone is going to pry in to my personal property without my wishes or a legal document asserting their right, I am going to make them work for it. Call me a dissident I guess.
And no I was not offended by the naive comment.
tappin and a talkin
Mr. Orange 645
Member
Still needs probable cause...
Probable cause is only one of the exceptions, and from what I understand, this ruling is concerning the search incident to arrest exception.
The exceptions are:
1. Search incident to arrest
2. Exigent circumstances
3. Plain view evidence
4. Probable cause (Only applies in motor vehicles, not houses where a search warrant would be required).
5. Inventory search for a tow (again for a vehicle).
Also applies to Plain View also IIRC....
I haven't read the case, so forgive me if I missed something. The only way Plain View would apply here is if the officer saw evidence on the phone while it was in plain view (i.e. sees the suspect typing/reading a text message that contains information of an evidentiary value). OR if the phone itself was evidence (stolen property) and it was found in plain view.
If I missed something, let me know. I'm very interested in these rulings.