Just Turning Your Phone On Qualifies As Searching It, Court Rules (arstechnica.com) 41
An anonymous reader quotes a report from Ars Technica: A man from Washington state was arrested in May 2019 and was indicted on several charges related to robbery and assault. The suspect, Joseph Sam, was using an unspecified Motorola smartphone. When he was arrested, he says, one of the officers present hit the power button to bring up the phone's lock screen. The filing does not say that any officer present attempted to unlock the phone or make the suspect do so at the time. In February 2020, the FBI also turned the phone on to take a photograph of the phone's lock screen, which displayed the name "Streezy" on it. Sam's lawyer filed a motion arguing that this evidence should not have been sought without a warrant and should therefore be suppressed.
District Judge John Coughenour of the U.S. District Court in Seattle agreed. In his ruling (PDF), the judge determined that the police looking at the phone at the time of the arrest and the FBI looking at it again after the fact are two separate issues. Police are allowed to conduct searches without search warrant under special circumstances, Coughenour wrote, and looking at the phone's lock screen may have been permissible as it "took place either incident to a lawful arrest or as part of the police's efforts to inventory the personal effects" of the person arrested. Coughenour was unable to determine how, specifically, the police acted, and he ordered clarification to see if their search of the phone fell within those boundaries. But where the police actions were unclear, the FBI's were both crystal clear and counter to the defendant's Fourth Amendment rights, Coughenour ruled. "Here, the FBI physically intruded on Mr. Sam's personal effect when the FBI powered on his phone to take a picture of the phone's lock screen." That qualifies as a "search" under the terms of the Fourth Amendment, he found, and since the FBI did not have a warrant for that search, it was unconstitutional.
Attorneys for the government argued that Sam should have had no expectation of privacy on his lock screen -- that is, after all, what everyone who isn't you is meant to see when they try to access the phone. Instead of determining whether the lock screen is private or not, though, Coughenour found that it doesn't matter. "When the Government gains evidence by physically intruding on a constitutionally protected area -- as the FBI did here -- it is 'unnecessary to consider' whether the government also violated the defendant's reasonable expectation of privacy," he wrote. Basically, he ruled, the FBI pushing the button on the phone to activate the lock screen qualified as a search, regardless of the lock screen's nature.
District Judge John Coughenour of the U.S. District Court in Seattle agreed. In his ruling (PDF), the judge determined that the police looking at the phone at the time of the arrest and the FBI looking at it again after the fact are two separate issues. Police are allowed to conduct searches without search warrant under special circumstances, Coughenour wrote, and looking at the phone's lock screen may have been permissible as it "took place either incident to a lawful arrest or as part of the police's efforts to inventory the personal effects" of the person arrested. Coughenour was unable to determine how, specifically, the police acted, and he ordered clarification to see if their search of the phone fell within those boundaries. But where the police actions were unclear, the FBI's were both crystal clear and counter to the defendant's Fourth Amendment rights, Coughenour ruled. "Here, the FBI physically intruded on Mr. Sam's personal effect when the FBI powered on his phone to take a picture of the phone's lock screen." That qualifies as a "search" under the terms of the Fourth Amendment, he found, and since the FBI did not have a warrant for that search, it was unconstitutional.
Attorneys for the government argued that Sam should have had no expectation of privacy on his lock screen -- that is, after all, what everyone who isn't you is meant to see when they try to access the phone. Instead of determining whether the lock screen is private or not, though, Coughenour found that it doesn't matter. "When the Government gains evidence by physically intruding on a constitutionally protected area -- as the FBI did here -- it is 'unnecessary to consider' whether the government also violated the defendant's reasonable expectation of privacy," he wrote. Basically, he ruled, the FBI pushing the button on the phone to activate the lock screen qualified as a search, regardless of the lock screen's nature.
Can they search you during an arrest? (Score:2)
I would have assumed that anything on your person was fair game when they are arresting you.
Can they check your pockets? Look in your wallet?
Re: Can they search you during an arrest? (Score:5, Informative)
Thats why they are specifically ruling on the FBI search after he was arrested and not the police looking at the phone while he was being arrested.
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Read TFS. It says just this. Searching during arrest is part of the act of arresting, and okay. Searching through personal effects after the fact is not.
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Discovering the phone seems to be okay... but when they hit a button to unlock it (and getting a password request) is "searching"... and that's been ruled out.
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Courts have determined that searching a phone requires a warrant. Pretty much period on that.
Inventorying your belongings does not include browsing through your phone, even on arrest, even if it's turned on. But maybe it includes looking at the lock screen, if it's already turned on. Hard to avoid.
This ruling was about what constitutes a search. It wasn't about under what circumstances it's okay to search.
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The phone wasn't "searched". This is just a sleazy lawyer trying to game the system to get a robbing, assaulting client off the hook.
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Not exactly.
Actually, literally exactly as I said. Read the court document linked in the summary. While it doesn't say that the police were in the right to power it on during the arrest, it does say that the reason why they did so is unclear and the court requested additional info. Because it's unclear, they cannot make a judgement on it. If it was absolutely not allowed, the wouldn't need to know why to make a ruling.
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Police can have all the "reasonable reasons" they want, but under most circumstances, without a warrant, their "reasons" don't matter. At all.
The point is, about the only time their "reason" matters, is if that reason was to conduct a search. As the ruling states: "in bad faith or for the sole purpose of investigation."
That's not just any "reasonable reason". That is a very specific, very narrowly defined reason.
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Post arrest, you have many personal affects of the person, they have to be catalogued and stored, so the right items can be returned. It is reasonable to activate the log on screen to identify the phone. I have my name and land line number on there for that reason, it is used to identify the phone and not about data stored in the phone. That is the real question, is the lock screen part of the phone identification or stored data, so what if they ring that phones number and they hear it ring to confirm, iden
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It is reasonable to activate the log on screen to identify the phone.
No, it isn't. There is no reasonable need to activate the phone to see if their evidence tracking procedures are correct. You might have your name and number on your lock screen to help if your phone is lost, but your phone isn't lost if it is part of your personal effects taken during an arrest.
Is it reasonable for the police to open your luggage to see if you have your name and number on a luggage tag inside? Is it reasonable for them to start your car to see if your name comes up on the dash displa
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Post arrest, you have many personal affects of the person, they have to be catalogued and stored, so the right items can be returned. It is reasonable to activate the log on screen to identify the phone.
You think they just put all the phones in a big box mixed together?
Here in real life they put them in plastic bags with identifying information on it.
Re:Can they search you during an arrest? (Score:4, Insightful)
I'd argue that even when they're arresting you the police shouldn't be able to interact with your devices in any way without a warrant. It's sufficient to take them in to police custody and if there's some cause for the police to believe they should be able to search through them, they can get a warrant from the court.
Re: Can they search you during an arrest? (Score:2)
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I think it depends on the nature of why the cops are there to begin with, and where the letter was stored prior to the cops wanting to open it.
I know that in Alabama, all drug warrants come with an article that enables the cops to look through all files, folders and computers - for drug records. Now, if they are searching your computer or phone, and find other increminating evidence (let's say illegal photos or files) that isn't in the same classification as the original reasoning behind why they're there,
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"A better question might be that if in the process of a police search of a person, an officer came across a sealed envelope in the possession of that person being arrested. Should the police be able to open that envelope without a warrant? "
Put a stamp on it then they sure can't.
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This "envelope" wasn't opened.
This is more like looking at the return address written on the back to see if it matches the the name of the person carrying it.
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Riley v. California (Score:2)
Search incident to arrest has three purposes. A search incident to arrest is lawful if it's for these purposes:
Officer safety (finding a weapon in their pocket)
Escape (handcuff keys, a file)
Destruction of evidence
In Riley vs California, SCOTUS ruled that an officer may not search the contents of a mobile phone because it doesn't fall into any of those categories. A search of the phone would be for the purpose of discovering evidence and can be done after getting a warrant, if the police have probable cause
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"Want to get out of handcuffs? There's an app for that."
Terry (Score:2)
The police can stop and search you under very certain circumstances, and only search you for very specific things. It's called a Terry stop. Basically they can search you for weapons, or material evidence of a crime they have witnessed.
That doesn't mean they can rifle through your stuff for anything they want. If you have a thumb drive, they can't download stuff off of it without a warrant. If you have a backpack full of papers, they can't go through and read them.
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Yes, that's search incident to arrest. The arresting officer can look at your stuff to make sure there's nothing there that is dangerous.
They cannot, however, search your phone, other than to say, "Hey, it's a phone". This was decided in Riley v. California, 134 S. Ct. 2473 (2014). To search it requires a warrant.
Not sure how its going to go on appeal (Score:2)
Re: Not sure how its going to go on appeal (Score:1)
Cops can't just look through windows, this has to be routine and brief if it happens. They can't just stare in and wait for you to do something bad.
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Yes, they can, not unlike you and I. Yes, there are some exceptions, however for the most part, yes, looking in someone elses window is perfectly legal if you are in a place you can legally be.
Hell, isn't that basically what a stakeout is? The cops being in a place where they can legally be to observe a location they may not have the ability to access?
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Achkully... you missed the point, and worse, are arguing against things I didn't say.
You'll note I said "there are some exceptions", such as where there is a a 'reasonable expectation of privacy'. Blinds/curtains can provide that cover, a good fence can be that... so erecting a tower on ones own property to spy on a neighbor sunbathing would be out.
Correct, which is why I never said anything contrary to that, just the opposite. Be it a cop, a neighbor or a dog sitti
Analogy (Score:1)
Re:Analogy (Score:5, Interesting)
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first, in your example "streezy" would actually appear on the first page, and they would have had to open the diary and look inside, which is equivalent to powering up the device, which is clearly an intrusion.
but this ruling says that they have no business whatsoever with anybody's personal effects without a warrant, not taking pictures and not even looking at, and that sounds quite right to me.
It's fine, relax (Score:5, Insightful)
The name was "inside" the phone in that it was data in memory. It's not about the lock screen. It's about needing a warrant to search your papers, with probable cause. Turning on the phone retrieves info and displays it. Should not be done without a warrant.
This is good, because more and more you take your papers with you, in your phone or laptop. Americans take their rights with them wherever they go, and taking their papers into a computer doesn't suddenly mean the government can rummage through it at will. You shouldn't have to give up participating in a modern convenience just to preserve your rights.
You maintain freedom of speech over the Internet, even though electronics are not a mechanical printing press, used to mass produce speech. Isn't that good?
Same thing here, but the memory chips' data are your modern papers.
You don't want a government with that power, because directing it against political enemies is the reason for the 4th. And 5th. Someone, especially another powerful person, irritating you? With no 4th, kings would and did go through your stuff looking for violations of law. And the more powerful and wealthy you are, the more likely they could find something.
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The name was "inside" the phone in that it was data in memory. It's not about the lock screen. It's about needing a warrant to search your papers, with probable cause. Turning on the phone retrieves info and displays it. Should not be done without a warrant.
This is good, because more and more you take your papers with you, in your phone or laptop. Americans take their rights with them wherever they go, and taking their papers into a computer doesn't suddenly mean the government can rummage through it at will. You shouldn't have to give up participating in a modern convenience just to preserve your rights.
You maintain freedom of speech over the Internet, even though electronics are not a mechanical printing press, used to mass produce speech. Isn't that good?
Your constitutional analysis of this decision was thoughtful, accurate, and undoubtedly echoed the judge's reasoning for how it preserves the rights of the people.
Therefore it will be overturned on appeal. Thanks for playing.
"Just turning on ..." (Score:2)
Good subject (Score:1)
Front Door (Score:2)
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What was on the lock screen? (Score:2)
It would be useful to know what was on the lock screen. Was it just the name Streezy? Or was he receiving texts or other lock screen notifications that included the name Streezy.
That seems like a more subtle problem, with gray area. I know this didn't happen here, but what if a co-conspirator kept texting the phone with: "hey, it was really fun robbing that bank with you last night!" On my phone that would pop up as a notification and light up the lock screen without me having to touch the phone. If that