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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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  • Passwords (Score:5, Interesting)

    by HaloZero (610207) <<protodeka> <at> <gmail.com>> on Tuesday January 04, 2011 @09:19AM (#34752910) Homepage
    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.
  • by whoda (569082) on Tuesday January 04, 2011 @09:38AM (#34753062) Homepage
    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.
  • Obviously... (Score:4, Interesting)

    by scorp1us (235526) on Tuesday January 04, 2011 @09:47AM (#34753138) Journal

    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.

  • "Stolen" phones (Score:4, Interesting)

    by antifoidulus (807088) on Tuesday January 04, 2011 @09:48AM (#34753140) Homepage Journal
    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.
  • by betterunixthanunix (980855) on Tuesday January 04, 2011 @09:52AM (#34753176)
    I did not say that I agreed with the ruling, I just gave my understanding of it. As far as I can tell, the judges are equating a cell phone with a pocket notebook -- the police can look through a pocket notebook, so why not cell phones and other electronics as well?

    As for the level of access your cell phone might give them...that is, frankly, irrelevant. First of all, the police cannot arrest you, and then use your housekeys to enter your home and perform a warrantless search of your house, so I doubt that a court would allow the police to use passwords stored on your smartphone to access computers in your home (from TFA, it appears that the case in question involved the police viewing a text message stored on the arrested person's phone). As for the data stored on online services, the police could search that without even informing you of the search, and may even be able to look through it without a warrant. There is no good distinguishing characteristic of "smart phones" that could be used to differentiate them from "dumb phones" -- all modern cell phones are mobile computers, some are just less restricted than others.
  • by inthealpine (1337881) on Tuesday January 04, 2011 @09:52AM (#34753178)
    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.
  • by garcia (6573) on Tuesday January 04, 2011 @10:06AM (#34753320) Homepage

    Glad I use an iPhone. My first call will be to my wife to remotely wipe the phone and then call a lawyer.

  • Re:Obviously... (Score:4, Interesting)

    by srmalloy (263556) on Tuesday January 04, 2011 @10:40AM (#34753652) Homepage

    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

    Actually, I suspect that the reasoning was extended from an earlier precedent that allows the police to search your car if you are arrested while driving, which I find equally reprehensible, but has been in effect for enough years that, in the current 'presumed to be a terrorist until stripped, fondled, and proved otherwise' climate, it is unlikely to be overturned.

  • by conspirator57 (1123519) on Tuesday January 04, 2011 @11:05AM (#34753926)

    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.

  • by virg_mattes (230616) on Tuesday January 04, 2011 @12:04PM (#34754552)
    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

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