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The Courts Cellphones Handhelds Privacy

Police Can Search Cell Phones Without Warrants 438

Posted by Soulskill
from the just-like-opening-a-wallet dept.
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."
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Police Can Search Cell Phones Without Warrants

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  • by RobertM1968 (951074) on Tuesday January 04, 2011 @09:36AM (#34753052) Homepage Journal

    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.

  • Re:Passwords (Score:5, Informative)

    by commodore64_love (1445365) on Tuesday January 04, 2011 @09:52AM (#34753164) Journal

    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.

  • by commodore64_love (1445365) on Tuesday January 04, 2011 @09:58AM (#34753236) Journal

    >>>Why don't they take this one step further and start scanning records from the wireless carrier?

    They can. Read the recently-passed Financial Reform bill which gives police new powers to obtain records/user logs from any US-ISP and not need a warrant for either the user, or the company. They can just walk-in, take what they want, and walk out. They also have this same power with banks.

    Thank you Democrat Congress of 2007-2010. Thank you Republicans for cooperating. Thank you for reaffirming that you are in fact ONE party, merely with different divisions.

  • by partofthepuzzle (1707364) on Tuesday January 04, 2011 @11:01AM (#34753888)

    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.

  • Link (Score:4, Informative)

    by krou (1027572) on Tuesday January 04, 2011 @11:07AM (#34753950)
    A link to the actual ruling would have been nice: http://www.sfgate.com/ZKUI [sfgate.com] (PDF).

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