Forgot your password?
typodupeerror
Communications The Courts Privacy United States Your Rights Online

Fed. Appeals Court Says Police Need Warrant to Search Phone 69

Posted by timothy
from the if-you-have-nothing-to-hide dept.
An anonymous reader writes "In a decision that's almost certainly going to result in this issue heading up to the Supreme Court, the Federal 1st Circuit Court of Appeals [Friday] ruled that police can't search your phone when they arrest you without a warrant. That's contrary to most courts' previous findings in these kinds of cases where judges have allowed warrantless searches through cell phones." (But in line with the recently mentioned decision in Florida, and seemingly with common sense.)
This discussion has been archived. No new comments can be posted.

Fed. Appeals Court Says Police Need Warrant to Search Phone

Comments Filter:
  • Easy Fix. (Score:2, Funny)

    by Anonymous Coward

    Just stop committing all those crimes, you wicked cellphone wielding people!

    • Re:Easy Fix. (Score:5, Insightful)

      by Mitsoid (837831) on Saturday May 18, 2013 @12:40PM (#43762807)

      Read the briefing...

      They already had him on doing a drug sale, and the cell phone was searched after he was read his rights and his items were confiscated for booking.

      It is kinda a grey area, but I'm happy this case is not about searching someone BEFORE any crime was committed & booked... rather, it was after he was arrested. There was also no password/encryption in use.

      This does bring up a mixed feeling.... But i think the judge made the right call -- There was no immediate danger, or issue, that could justify bypassing the individuals rights. He was already in custody and being charged for a crime... His phone was safely in police custody and being processed to store. A judge should have reviewed the information and issued a warrant to search the phone.

      If the crime was kidnapping, and the phone might have information on where to go to save someone's life.. I'd agree in a heartbeat that his phone should be searched immediately.. But this guy was being processed to go behind bars and nothing in the phone could have reasonably been useful to solve any immediate crises.

      • Yeah, it's not a huge deal for the police, they'll just have to change the process slightly. For the rest of us it's slightly more protection, but it's unlikely the judge will deny a warrant in very many cases.
      • Re:Easy Fix. (Score:5, Insightful)

        by thaylin (555395) on Saturday May 18, 2013 @01:12PM (#43763083)
        So you are fine with the police violating the rights of its citizens in arbitrary situations.
        • by Nerdfest (867930)

          I think post-search judgements will generally throw out any evidence obtained if the judge does not believe there was immediate cause.

          • by thaylin (555395)
            So you are fine to let the government run over the rights in the hopes that it will be thrown out latter. Good to know.
            • Re: (Score:2, Insightful)

              by Nerdfest (867930)

              This is so that under what the police deem extreme circumstances, they can perform a search without a warrant. Kidnapping is a good example. They're taking their chances, as where evidence would be valid if obtained with a warrant, it will not be in most cases. The other solution is to have on-call judges that can give a warrant over the phone. Both of these are open to abuse, but the former allows a bit more time for consideration of the circumstances.

        • Re: (Score:2, Funny)

          by Radtastic (671622)
          That's very insightful. +5 for you,kudos. Except the example posted where the op supported a warrantless search wasn't arbitrary.. it had a defined circumstance (timeliness of knowing the data might save a life.)
          • by thaylin (555395)
            Except the definition of arbitrary is not the only official definition there is:

            From M-W.com

            1: depending on individual discretion (as of a judge) and not fixed by law

            2

            a : not restrained or limited in the exercise of power : ruling by absolute authority

            b : marked by or resulting from the unrestrained and often tyrannical exercise of power

            3

            a : based on or determined by individual preference or convenience rather than by necessity or the intrinsic nature of something any arbitrary positive number

      • Re:Easy Fix. (Score:5, Interesting)

        by icebike (68054) on Saturday May 18, 2013 @02:02PM (#43763397)

        They already had him on doing a drug sale, and the cell phone was searched after he was read his rights and his items were confiscated for booking.

        But in most jurisdictions, if they had taken his car while making the arrest, they would have had to get a search warrant before they started digging around in the car.
        It seems only proper that they get a warrant for the phone. If it makes as much sense as you seem to imply, they would have no problem getting the warrant.

        Unless they suspect there evidence in the car, they don't automatically have a valid reason to search it. Even if they believe there may be a trunk full of drugs, most police agencies will get the warrant just to be sure it stands up in court, because "suspecting there is evidence" has been found to be just too big of a loop-hole and has been so often abused that it is routinely thrown out. In fact in some jurisdictions, if they seize the car/phone, all emergency situations cease at that point and there is no longer exigent circumstance to search for drugs. Bombs, maybe, but drugs or cell phone data, not so much.

        See: http://www.aclu.org/drug-law-reform-immigrants-rights-racial-justice/know-your-rights-what-do-if-you [aclu.org]

        As for "having him on Drug sales", I fail to see why that makes a difference. They already had is phone too. He wasn't going to be given a chance to wipe it.

        • by AK Marc (707885)
          They search the car throughly on impound for "inventory" purposes. You may fight it, but you'll likely lose. They aren't "looking" for anything, but they can use anything they find against you.
      • by AK Marc (707885)
        They don't need a warrant to search your car after an arrest either, but they claim that's for "inventory" purposes, "1 cell phone" is sufficient for that, no need to count your 1s and 0s.
    • by Anonymous Coward

      Here in Michigan, cops are demanding to plug your cell phone in to their box when they pull you over for traffic stops. They like smart phones, because they'll give up where you've been, all your calls and texts, and your phonebook. Older dumb phones don't cooperate so much.

  • by Jeremiah Cornelius (137) on Saturday May 18, 2013 @12:25PM (#43762691) Homepage Journal

    Seems like it will continue - despite any ruling. Look at the overall indicators and trend, not just one specific ruling or data point.

    Those cool, adventurous science-fiction dystopias in Bladerunner and the like. Well, they aren't so cool for most people to live in. They certainly aren't cool for the people who witness the transitions - from the 70s to post 2001...

    It's a long way from the top, now. And we didn't tie a rope to climbe back.

    • by gnasher719 (869701) on Saturday May 18, 2013 @02:04PM (#43763411)

      Seems like it will continue - despite any ruling. Look at the overall indicators and trend, not just one specific ruling or data point.

      But if it happens, a lawyer can now point to this ruling, which states that searching the contents of a mobile phone without warrant during an arrest is almost always illegal, and that any evidence coming from the phone is inadmissable. Which means that evidence that the police _might_ have found in another way is now inadmissable.

    • by techno-vampire (666512) on Saturday May 18, 2013 @07:18PM (#43765123) Homepage
      AIUI, cops tend to follow this type of ruling very, very carefully and do their best not to violate any new guidelines handed down. This isn't because they have such a great respect for the law (although many individual cops probably do) but because they don't want to have their evidence declared inadmissible, with the chance that the entire case might be thrown out. After all, they don't have to agree with the rules of evidence, they just have to make sure they follow them.
  • by TaoPhoenix (980487) <TaoPhoenix@yahoo.com> on Saturday May 18, 2013 @12:35PM (#43762765) Journal

    Really, for once the court seems to have a backbone. (Only once?)

    It of course makes no sense that you can have a pile of papers and "edible looking items" in your car, and those are protected, but then there's your phone over there in the corner, "yay, it's electronic so the consitution doesn't apply!"

  • Common sense (Score:5, Insightful)

    by Okian Warrior (537106) on Saturday May 18, 2013 @12:37PM (#43762779) Homepage Journal

    From a casual reading (by a non-lawyer) of the constitution, this makes perfect sense.

    This thing about "we can go through all your possessions if we somehow get our hands on it" is ludicrous, and the "if we can pick the lock or break it open we can rummage around inside" thing is stupider still. If I lock my data but the police manage to break the encryption method they can rummage around in the data? Does this work for the locks on my house? The dial on my safe?

    The simple search looking for weapons thing "to protect the officer" was an exception, but they've taken it beyond extreme rights violations [npr.org].

    If you see someone committing a crime, arrest them. If you can't convict them without the data on their cell phone, you shouldn't have arrested them in the first place.

    Oh, and if someone parrots "how can we do our jobs if we don't have the tools" nonsense, remind them that we're currently enjoying the lowest crime rate in several decades.

    • Re:Common sense (Score:4, Insightful)

      by Intrepid imaginaut (1970940) on Saturday May 18, 2013 @12:45PM (#43762857)

      Yep well done America, you've partisaned the English back into power, whether republican or democrat.

    • by crovira (10242)

      Does this work for the locks on my house? The dial on my safe?

      You're asking this of guys who'll kick down your door if you don't open it fast enough and run in with weapons blazing?

      Seriously?

      • by icebike (68054)

        Does this work for the locks on my house? The dial on my safe?

        You're asking this of guys who'll kick down your door if you don't open it fast enough and run in with weapons blazing?

        Seriously?

        Unless they are in hot pursuit, they will not kick down your door without a warrant.

        With a warrant, they will use the City Key to open your door, especially if the warrant specifies flushable drugs.

        • by HiThere (15173)

          Perhaps they are legally required to have a warrant, but there's no punishment to them if they just ignore that restriction. At least not locally. (OTOH, the local police have been awarded a federal oversight manager with power to fire the chief of police unless he cleans up the department, so perhaps that's not common.)

          • by icebike (68054)

            You must live in Seattle.

          • Perhaps they are legally required to have a warrant, but there's no punishment to them if they just ignore that restriction.

            There is, once something goes to court and someone gets set free because evidence is not admissable due to an illegal search.

          • Re:Common sense (Score:4, Informative)

            by icebike (68054) on Saturday May 18, 2013 @04:56PM (#43764445)

            The officers were investigating a domestic disturbance, which qualifies as an exigent circumstance under California law..

            Had they merely walks out an met the officers on their porch nothing would have happened.

            Yet the prevented the officers from doing what the law required them to do.

            Don't like that law, then get the law changed, and watch more monsters beat their wives while forbidding the police to enter.

            The people you elected voted for that law, principally to protect women. If a vote were held today on that issue
            it would pass again, easily, because women voters outnumber men, and Ariel Castro has taught us all a lesson
            of what an unrestricted right to privacy in your home can bring.

        • There have been incidents here of NYCs finast shooting some poor schmucks who were guilty of just answering the front door "while being mexican or of driving a car "while being tipsy and black" and getting themselves shot dead.

          "Quis custodiet ipso custodes" indeed.

  • It makes Sense (Score:2, Insightful)

    by DadLeopard (1290796)
    That might be the most worrying thing, it actually makes sense! Sure to be overturned on appeal! We are now living in The Age of Government Overreach and Security at any price! Nothing must limit the power of the Gesta---, (Cough Cough) Department of Homeland Security to do it job! Which they will define as they go along!
    • Re:It makes Sense (Score:4, Insightful)

      by gnasher719 (869701) on Saturday May 18, 2013 @02:06PM (#43763427)

      That might be the most worrying thing, it actually makes sense! Sure to be overturned on appeal!

      Have a look who made that ruling. Then come back and tell us who would overturn this.

    • by icebike (68054)

      That might be the most worrying thing, it actually makes sense! Sure to be overturned on appeal!

      Almost certain to be ultimately upheld on appeal.

    • Gestapo? You can bitch all you want but at least have the intelligence to realize comparisons of this type undermine the true horrors and injustices perpetrated by the Gestapo. If you really think the US government is acting like the Gestapo then most people think life was really not all that bad in Germany during WW2. If Home Land Security or any other law enforcement agencies acted like the Gestapo you would most likely be dead or in prison for publishing your opinion on the matter. Totalitarian systems

  • This is good (Score:5, Insightful)

    by nebular (76369) on Saturday May 18, 2013 @12:49PM (#43762887) Homepage

    Courts are seeing that the cell phone contains far more private info than would normally be found in someones pockets. On the surface a cell phone would be open season without a pin code, but if you delve deeper it's more like you're carrying your filing cabinet with you at all times and should be treated as such.

  • They will keep your phone until they get their ribber stamp warrant. Make sure to have a backup.. I guess... And record all videos live to the internet

  • by Anonymous Coward

    The Justice Dept will take your phone records without your knowledge anyway. Just ask the Associated Press.

  • by rahvin112 (446269) on Saturday May 18, 2013 @01:13PM (#43763087)

    All these exemptions to the constitution were instituted as exceptions to aid the war on drugs. The real enemy is the war on drugs and prohibition 2.0 should be abolished.

    • by Immerman (2627577)

      Were they? Or was the "War on Drugs" instituted (or at least leveraged) as an excuse to get the exceptions? As a rule I avoid wearing a tinfoil hat, but I've never heard any non-tinfoil explanations that make sense. Certainly there were a *lot* of competing interests that banded together to to demonize cannabis, and after that... A few of the extremely addictive or damaging substances perhaps you could make a case for on public heath or national security grounds - China for example has a history of using

      • by Anonymous Coward

        There is some contention that the War on Drugs started to protect William Randolph Hearst's profits. Hemp had been used for both paper and fiber (both for rope and for fabric -- the original Levi Strauss jeans were made from hemp fabric) for centuries. However, for most of that time, hemp could only be used for one or the other -- cleaning the pulp from the fiber destroyed the pulp, and chopping the stems up to process the pulp destroyed the fiber. The invention of the hemp decorticator created a mechanical

    • Re: (Score:2, Flamebait)

      by icebike (68054)

      Oh, don't worry, there are a plenty of other reasons that will be pushed to the front even if every drug on the planet were legalized.

      We have the war on terror (where mere possession of a piece of wire makes you guilty of possession of bomb making materials)
      We have the war on child porn (where picks of your kids first bath makes you a child pornoghrapher)
      We have the war on sex crimes (where taking a wiz in an alley after too many beers makes you a sexual predator)

      Police were busting down doors without warra

      • re: the war on child porn : have you noticed how lately a lot of the child pornography arrests state that the DHS was involved in the arrest? What is the Department of Homeland Security doing involved in child pornography cases? Is that a weird extension of their range of authority, or was that always part of their function?

        re: the war on drugs : have you noticed all of the weird highways stops, oh 50 to 100 miles inland away from the actual border, manned by the border patrol? There's one near the San O

    • by drinkypoo (153816)

      All these exemptions to the constitution were instituted as exceptions to aid the war on drugs.

      That is not even close to true. Many of them were instituted as exceptions to aid the war on terror. The problem is deeper than the war on drugs; as terrible as that is, it is actually a symptom.

  • If you notice ruling was from an event in 2007. This was probably one of the incidents that let to police departments having to get warrants for phones. While this is interesting because it shows that law enforcement can't do it without a warrant, I would be surprised if any of them did it anyways.

    Our local police department hasn't been able to for at least 4 years, they aren't even supposed to open/look through your wallet.

  • a sudden outbreak of common sense.

    There will soon be bipartisan proposals to counter it.

    LK

It is better to give than to lend, and it costs about the same.

Working...