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Calif. Appeals Court Approves Cell Phone Searches 367

Posted by timothy from the say-what's-your-unlock-code? dept.
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.
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Calif. Appeals Court Approves Cell Phone Searches More

Calif. Appeals Court Approves Cell Phone Searches

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  • Don't give them permission to search your car.

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

      by dkleinsc ( 563838 ) on Thursday October 06, 2011 @08:04AM (#37624682) Homepage

      That doesn't always help - they may search it illegally, or (as Shaun Martin argues) invent a completely fake excuse to allow them to search it. In this case, it was a completely fake "drug tip". Also quite common is to call in the police dog, order the dog to false-alert when walking near the vehicle, and search based on that.

      Now, you should still not give permission to search, that's absolutely true. But especially if you're not a straight clean-cut educated white guy, don't be all that surprised if they trample on your rights.

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

        by Anonymous Coward on Thursday October 06, 2011 @08:20AM (#37624828)

        Also quite common is to call in the police dog, order the dog to false-alert when walking near the vehicle, and search based on that.

        Now, you should still not give permission to search, that's absolutely true. But especially if you're not a straight clean-cut educated white guy, don't be all that surprised if they trample on your rights.

        I'm a clean cut white guy and I've had the K-9 "alert" on my car and been searched twice, and no drugs were found either time.

        I don't understand why the work of a DOG is enough to violate my rights. The dog will alert if the handler gives the command to alert. This isn't evidence and should be disallowed in court.

        Cops LIE and courts need to become confortable with that fact. The "War on Drugs" has done more to damage our rights than the Patriot Act ever did.

        • I'm a clean cut white guy and I've had the K-9 "alert" on my car and been searched twice, and no drugs were found either time.

          I don't understand why the work of a DOG is enough to violate my rights. The dog will alert if the handler gives the command to alert. This isn't evidence and should be disallowed in court.

          I absolutely agree. A dog barks and it's probable cause?

          Cops LIE and courts need to become comfortable with that fact.

          Oh, they're comfortable with it alright...

        • Re:Easy solution... (Score:4, Interesting)

          by HornWumpus ( 783565 ) on Thursday October 06, 2011 @10:50AM (#37626748)

          What we need is a websight where individuals can log every time a cop dog false alerts.

          Then the land sharks can get the dogs disqualified as unreliable.

          Those dogs cost $, once the cops have something to lose they will protect their dogs as police assets.

      • Re:Easy solution... (Score:4, Interesting)

        by XxtraLarGe ( 551297 ) on Thursday October 06, 2011 @08:23AM (#37624870) Journal

        Now, you should still not give permission to search, that's absolutely true. But especially if you're not a straight clean-cut educated white guy, don't be all that surprised if they trample on your rights.

        Or if you have a Ron Paul bumper sticker [libertycoalition.net] on your car.

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

      by Attila Dimedici ( 1036002 ) on Thursday October 06, 2011 @08:43AM (#37625070)
      Apparently, in the situation of this case, they did not need permission to search his car. They searched his car under the guise of doing an inventory of what was in it before they towed it so that they would know if anything was stolen at the impound yard. In this case, if he had given them permission to search his car, I would accept them searching his phone when they found it. Basically, one they started searching his car, each step along the way they found something that gave them probable cause to look more closely at other things they found. They found a gun positioned to be easily drawn and fired by the driver (I know several people who carry guns for self-defense, they rarely position the gun for "quick" draw, they generally expect that if they need the gun they will be in a situation that escalates slowly enough for them to access the gun from some place that is less than the optimal place to draw and fire). They then found drug paraphanalia. When they looked at the phone they found a wallpaper picture on the phone of a masked person resembling the driver brandishing two assault weapons.
      However, I have a problem with their justification for searching the car in the first place.

      • And they were "assault weapons" how? Were the fire-select switches visible with an "auto" position? An AR or AK is not an assault weapon unless it has an auto or burst mode. They're no different than a damn hunting rifle with a different case. If I put an Arduino board in a Mac case, can I call it a Mac?

        • Given the chain of what was discovered before that point, it doesn't really matter if they were actual assalut weapons, or merely has the appearance that most people associate with assault weapons (in other contexts, I would agree that that would be important). In this case, my problem is not with them searching the cellphone they found, it is with them searching the car in the first place. Or, now that I think of it, I do. The excuse for searching the car was to take an inventory prior to towing the car. U

    • Re: (Score:2)

      by Sloppy ( 14984 )

      That's like saying you don't need to use crypto on the Internet, because you don't give permission to anyone to intercept your plaintext. Just like how you don't need to put armor on your combat tank because you don't give anyone permission to shoot at it. ;-) Not giving permission doesn't "solve" problems.

      (Still, I think I get your point: Lots of people give more permissions to cops than they need to.)

  • This ruling does not last long. (Score:5, Informative)

    by www.sorehands.com ( 142825 ) on Thursday October 06, 2011 @08:00AM (#37624636) Homepage

    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 [californiality.com]

    • Re: (Score:2)

      by dintech ( 998802 )

      Why not just set a PIN number on your phone? Can you be compelled to give them that during a stop?

      • The devices police have access to bypass any security locks or pins you have on your phone, as one poster above me stated: http://www.cellebrite.com/forensic-products/forensic-products.html?loc=seg [cellebrite.com]

        • But doesn't it offer legal protection? Police I am sure have the ability to pick locks too but that doesn't mean they would be allowed to pick a locked box on your passenger seat during a routine search right?

          The cardboard box would not be open and thus they should need a warrant.

          But then I don't know the USA laws. I'm just guessing

        • It would be interesting to snoop in on that device in operation, see what it does/get the codes. Could allow you to fully unlock your hardware.

    • Re:This ruling does not last long. (Score:5, Insightful)

      by Hatta ( 162192 ) on Thursday October 06, 2011 @08:26AM (#37624900) Journal

      The damage to the 4th amendment is done. Our right to be free from unreasonable searches should not depend on the vagaries of elected representatives, but should be (AND IS!!!) enshrined in our very constitution.

      No reasonable person could believe that this search is reasonable. Our courts are completely off the rails. If they can't enforce the constitution, we have no legitimate government left.

      • It is time for a revolution... But which quacks shall I follow?

      • Re: (Score:2)

        by bondsbw ( 888959 )

        The assumption in your post is that the constitution is absolute and not open to interpretation. If this were the case, and if it were intended, then there would be no need for courts to rule on constitutional matters.

        But, I don't necessarily agree with this. I would prefer the constitution be stated in completely unambiguous language, not left open for interpretation. I would prefer that ideas like "your rights stop where my rights begin" to be encoded into the constitution, instead of simply being a co

  • Does it stop at the phone? (Score:4, Insightful)

    by schwit1 ( 797399 ) on Thursday October 06, 2011 @08:00AM (#37624640)

    iPad or laptop?

    What if your device contains attorney-client privileged material or other sensitive documents?

    • Encrypt the contents of the device and password protect its access. Even if they pull all the data off the phone they can't do much with it if its encrypted.

  • Hardware Duress Mode (Score:4, Interesting)

    by sethstorm ( 512897 ) on Thursday October 06, 2011 @08:00AM (#37624646) Homepage

    They get a very sanitized version of the phone, you get to keep your privacy - all while complying with their order.

    • TrueCrypt would actually allow this.

      The big problem with TrueCrypt is that it doesn't allow you to perform lower-level maintenance operations (like fsck) on partitions. Yes even if you unmount the mountpoint and try to fsck / fdisk the device under /dev/mapper/ it won't be recognized. This is why I changed my home backup drives to dm-crypt/luks.

      • The big problem with TrueCrypt is that it doesn't allow you to perform lower-level maintenance operations (like fsck) on partitions. Yes even if you unmount the mountpoint and try to fsck / fdisk the device under /dev/mapper/ it won't be recognized. This is why I changed my home backup drives to dm-crypt/luks.

        I'm sorry, I don't understand your issue. You can perform any and all file operations you require on a mounted volume, including defrag, formatting, file system checks etc. You can't do that when the volume isn't mounted because the entire volume is garbage to the OS. It has no file system to check.

        Am I missing something?

        • I think you are...if you try to perform a check on a totally unmounted TC partition it will look like a blank hard drive full of garbage. If you mount the partition (device mapped to /dev/mapper/whatever, then /dev/mapper/whatever mounted on /media/whatever) then obviously you can't fsck it or you'd destroy it. If you unmount /media/whatever and try to fsck /dev/mapper/whatever, the partition is still unrecognizable to fsck (and fdisk, and gparted...).

          • I'm not a Linux dude, so I'm a little out of my depth here, but I can tell you a little about TrueCrypt on Windows.

            It sounds like you're using partition / device level encryption, which would result in a device totally unreadable without the TrueCrypt app mounting the volume totally. Windows will still show the hardware as present, but won't report any partitions or FS on the device. In order to perform any kind of checking on the disk, the file system needs to be mounted, which needs the container to be m

            • Sounds right.

              The difference is that you can run Scandisk (fsck equivalent) on a FAT/FAT32/NTFS partition (at least in Windows) while it's mounted. Linux filesystems don't allow for this - and IIRC fsck won't let you check a FAT filesystem while it's mounted either.

  • Opinion (Score:3, Informative)

    by Anonymous Coward on Thursday October 06, 2011 @08:01AM (#37624650)

    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?
    • Fail. You shouldn't need a password, any more than you should need to live in a vault in order to stop the police kicking down your door and turning over your home without a warrant simply because they happen to deem it a "reasonable" (pronounced the same as "convenient") search.

      • An excellent analogy, but let's be practical here. You can either encrypt your phone or try to improve your civil rights in a country with a two-party political system where neither party is too hot on them. Which one's easier?

    • Of course with the Legislature passing the mobile phone privacy law, this discussion is all academic, but I don't think so. The Fifth lets you refuse to *testify* against yourself. It does not say anything about letting you refuse to give the government the key to a locked box that they want to legally search (which would be the 18th century analogue to a password-protected phone). Especially in light of the court finding (wrongly, IMO) that phones don't count as far as illegal search and seizure goes, it's

    • Since they already don't care the least about the Fourth, I don't see why they'd care about Fifth. And since they didn't care about Second as well, even that recourse is now gone.

  • California Uber Alles (Score:2, Insightful)

    by Gimbal ( 2474818 )

    Dead Kennedys for Emperor. That is all.

  • 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

    • Re: (Score:3, Insightful)

      by Joce640k ( 829181 )

      Obligatory XKCD [xkcd.com]

    • Look up UFED / Cellebrite. This gives a lot of power to the lowest level of cop.

      Very dangerous... I'm quite sure (because of the sheer number of laws) the average person has something which could be construed as illegal, embarrassing or sensitive on their smartphone. What's that quote about six lines of text and an honest person?

  • "Can" or "must"? (Score:3)

    by Sockatume ( 732728 ) on Thursday October 06, 2011 @08:09AM (#37624736)

    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.

  • 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.

    • So it can be done?

      Just overclock it and get an extended battery.

      • Hah I've been trying to overclock, but I can't get around this bug [maemo.org] in the kernel - and me and another guy tried custom-coding a solution with no luck. I tried the power kernel with the bleeding-edge wifi drivers but after a while it wouldn't see any APs and I'd have to reload the drivers. It was way too much of a PITA so I had to go back to the stock kernel and drivers.

      • Just overclock it and get an extended battery.

        So simple even your granny could do it!

    • 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.

      How do you know the overhead of dm-crypt will actually have any noticeable impact on your N900's performance?

      My N900 with CSSU has been performing quite well for the past month, but I'm not currently running kernel power.

      One howto is here [maemo.org], but due to framebuffer not working in the titan kernel is not complete ... and you need a non-stock kernel for dm-crypt (apparently, I wonder if it is possible to build just dm-crypt and dependencies for the stock kernel).

      • Could be just that I'm horribly impatient :-P

        I've been meaning to set some time aside an set up the CSSU on mine...

  • Why not just have fun with it? (Score:2, Funny)

    by Anonymous Coward

    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.

  • A note on the additional commentary (Score:2, Funny)

    by Anonymous Coward

    "On that same theory, getting busted for a DUI would permit police to search your home, right? Read your diary. Look through all your pictures. You might have pictures and diary entries in there that prove that you're a cokehead too, after all. So that counts as probable cause too?"

    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,

  • 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
    • Smartphones are an extension of your personal life and letting the law pry into that without a subpoena is a dangerous path to walk. You let the law do something like this without a warrant and they are trampling on your personal freedom not to mention potential guilt by association. If law enforcement wants what is in my dumb phone they can go see the judge. F#@$#^% the man.
    • You must have missed the other story a few years ago, which made it all the way to the Supreme Court, that basically said the cops can arrest you for anything. It was about some lady and her kids who did not have their seat-belts on. SCOTUS ruled it was fine. See the full story here: http://en.wikipedia.org/wiki/Atwater_v._City_of_Lago_Vista [wikipedia.org]

      So your argument about 'just' getting a ticket does not hold.

  • welcome to the living Constitution (Score:3, Informative)

    by Anonymous Coward on Thursday October 06, 2011 @08:26AM (#37624894)

    "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.

    • We should really be more careful when we choose judges.

      In California's system, the governor appoints judges who then have to make it through an election. All evidence suggests the governors are being careful, just careful to pick judges that a reliably pro-police.

  • 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.

  • 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.

  • 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.

  • 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, co

  • 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 war

  • 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.)

  • car towed out of concern for car -- yeah, right! (Score:4, Informative)

    by whoever57 ( 658626 ) on Thursday October 06, 2011 @10:43AM (#37626636) Journal

    With Reid under arrest and handcuffed in the patrol car, Deputy Ryan decided to have Reid's Acura towed. Reid had wanted Deputy Ryan to leave the Acura on the side of the road or to drive the vehicle to his house, which was a half mile up the road. ...... Deputy Ryan's decision to take the vehicle into safekeeping was based on his concern that leaving the car on the side of the road would expose it to possible vehicular theft or burglary since it was nighttime,

    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.

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