Will California's Governor Outlaw Police From Searching Mobile Phones Without A Warrant?
from the what-4th-amendment? dept
For years, we've discussed the legality of police searching the contents of your smartphone at a traffic stop. The issue is a bit complex legally. The law generally says that police can search through anything on your body, but that was generally meant for things like your wallet or other physical storage. When it comes to something like a smartphone, that contains all sorts of details about your life (and the ability to access a hell of a lot more) the questions become a lot trickier. It certainly feels like it should be against the 4th Amendment to allow such searches without a warrant -- but the courts have been mixed. Tragically, earlier this year, California's Supreme Court ruled that such searches were perfectly legal without a warrant. In response, the California legislature passed a bill, SB 914, which would require police to get a warrant.But there's a problem: Governor Jerry Brown hasn't signed it yet.
Despite petitions and a variety of editorials urging him to sign it, he's still sitting on it (he has until October 9th). Wired is reporting a rumor that Brown has agreed to veto the legislation in an effort to please the "law enforcement lobby."
As the Wired article notes, the law itself is already pretty weak, allowing law enforcement to ignore the warrant requirement under vaguely defined emergency circumstances. It also doesn't require any official reporting of such uses where the warrant requirement is ignored, meaning that such an exception might be abused. But it certainly takes things a big step in the right direction concerning an individual's right to privacy. Hopefully Governor Brown recognizes this and signs the bill.
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Filed Under: 4th amendment, california, jerry brown, privacy, smartphone, warrants
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Putting that same information into a smart phone (or laptop for that matter) and putting that device in the same place on the seat doesn't magically make it disappear.
The question of "and the ability to access a hell of a lot more" is moot, because the right to search doesn't extend past what is in the car itself. Police can not, by extension, go and search your home as a result of a traffic stop, nor can they go online to download information that is not present in your cell phone or laptop. For this, you appear to be playing a bit of a FUD card. The police aren't trying to get access to your facebook account on a traffic stop, but they should have the rights to whatever is in arms reach.
If you choose to carry around a "virtual box of files" on your person, you are taking that risk. The choice is yours.
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The major problem with your box of files analogy is that they don't search the box of files for information about you, they would search it for what I previously mentioned (hidden drugs, weapons). They also don't make an exact copy of your box of files and take it back to the police station to more thoroughly search threw them.
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But that's EXACTY what they are doing! Most people have FB on their phones these days, what is to prevent an officer from searching that on your phone?
As usual, the only FUD seems to be coming from you.
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Not just "they looked at what facebook left on the phone" but the actual officer going through, connecting online with facebook, and reviewing the contents of the facebook account during a traffic stop.
Stop with the FUD, you know this isn't happening.
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The funny thing is, we can't know one way or the other, yet you seem to strongly believe one way over the other... sounds like FUD to me :)
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The "can" almost anything, but the question is "does it hold up in a court of law"? What is on the internet isn't clearly in arms reach, it is far away, and you have to take action to make it come to you. I can't see anything download via a device during a traffic stop getting a nod from the courts.
So, are you just spreading FUD, or do you have an actual example you want to share with us? Remember, "But that's EXACTY what they are doing!".
Show us.
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http://www.thetruthaboutcars.com/2011/04/michigan-police-search-cell-phones-during-traffic- stops/
What's worse, they extract deleted information from the phone as well!
Your move.
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We all know already that they can access the phone (and copy it using available tools). You still have not shown them going online and accessing the guys facebook account.
Everything that they did there was copying what was on the phone itself, which was in arms reach. They did not go online.
Try again.
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Are you saying that a court would/should allow text messages, but not if one is downloaded *during* the traffic stop? GPS data is ok unless it's during the traffic stop? Remember, it's all downloaded! Where is the line exactly?
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Since I got a smartphone, the entire internet is within reach practically 24/7.
Show us.
You first. You're big on talk, but never have you supplied evidence. Never. Not once. Put up or shut up.
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What am I going to show? An empty police car, or maybe a policeman not checking a cell phone?
Grow up, will you?
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The funny thing is, we can't know one way or the other, yet you seem to strongly believe one way over the other... sounds like FUD to me :)
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Those who bring up the "but they could use it to go on the internet" argument fail because it is clear that in any court case as a result, there would be a question of the source of the evidence. If the police say "I used the guy's cell phone to access his company's network and download the files from his personal, password protected storage area on the company servers", it is very likely that the evidence will be thrown out, because none of those things was within arms reach.
In that regard, a cell phone is like the keys to someone's house. They can look at the keys, they can exmine them, but they cannot use them to unlock the door of his house and go have a look around. Understanding that simple difference explains where I stand in this case.
You made a direct statement of what police were doing, but when asked to back it up, you offered up a link to significantly less than what you claimed.
Do you have any evidence that police are using cell phones to access the internet during traffic stops? Or are you full of shit?
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But what I claimed and what the link showed are both entirely correct, see my earlier post you ignored :)
How much more do you need? You ask for evidence, it's provided, and the best you can counter with is "I disagree, therefore you are wrong"...
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"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."
"...their persons, houses, papers, and effects." those are the key words of the 4th amendment: persons, houses, papers, and effects.
MY cellphone is just but one of my effects(along with my vehicle). And, according to the 4th Amendment, falls under its protection and, therefore, a warrant is required. IS required. not "should be" or "oughta be". IS required.
This message is brought to you by the 4th Amendment.
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The rest of you who are arguing to the contrary are morons and I have never heard such crap come out of anyone's mouth as to try to argue their side. Jogging and have a heart attack. Really!? You are dumb!
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Yes there is a choice. But is it a realistic choice?
Sure, I could use a cell phone with no features what so ever and keep all phone numbers in my head. But really?
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Have you never watched an episode of 'Cops'?
You have officers curious about what the people in the car are doing, and pull them over for a 'traffic offense'. They then engage them in discussion, and then want to search the car.
The if they found 200 pounds of pot hidden in the trunk, you suggest they would have no interest in searching the home of the people they pulled over.
Allowing them to examine the phone, read texts, emails, look at pictures, etc. is invasive into a persons life and has nothing to do with the 'traffic offense' they were pulled over for allegedly committing. Giving them the ability to go on a fishing trip through a persons life, simply for the officer pulling them over for what he felt was a rolling stop, is hugely overreaching.
We have companies selling machines that download the entire contents of a phone, protected or not, and some agencies using them. They claim they would never use it on a standard traffic stop, but without oversight we all know where this often leads.
Being able to go through a persons phone for having a tail light out seems like it might be going to far. But then we have a society full of fear that if we can't look at the bad peoples phones we might miss a terrorist, but they often never consider what happens if that law is used on them because they are "good people".
I suggest that the Governor hand his smart phone(s) over to officers first, so he can understand exactly what this law allows. The legislature seems to have an issue with this, and acting on the concerns of the people have moved to amend the law the Governor has allegedly decided that the police having expanded powers is more important than the people's right to privacy.
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They have no interest to search the home of people they pull over unless what they turn up during the traffic stop provides the probable cause to go to a judge and get a warrant.
"Being able to go through a persons phone for having a tail light out seems like it might be going to far"
Yet, they can go through an open box of documents sitting on the seat next to the driver. Isn't this just the electronic version of that file box? Is making the files digital somehow make them disappear?
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"Right to Search"
I do not believe it is a right, ever. Officers may have the authority and legal grounds to conduct a search, they may be said to be 'in the right' or it may be permissible for them to conduct a search. But it is not their "right".
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Encryption is only good if you decrypt only when you need it (so they key doesn't stay in active memory) or if the physical drive is stolen (damn good reason to encrypt right there).
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why can't you just turn your phone off when you get pulled over?
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Syncing accounts are in the car
It almost makes you wish there was a civil anti-hacking law that the people could abuse against officials.
"locked" is also an interesting word... does sliding a bar to the right count as a lock? what about a required pattern? Could you be charged for hindering an investigation by not providing the pattern?
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IANAL far from it actually, but I think your right to remain silent, and your 5th amendment right not to self-incriminate should protect you on this matter
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Maybe you can get Two weeks the second time! Oh! Or a month!
Meanwhile your silence will be handed off to another judge as reasonable suspicion of.. well, Anything. Wonder what else they can do to you, and the secured device/file/system at that point?
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Frequently when I go out jogging or biking for exercise, the only things I carry with me are a key to get back into my house, and my cellphone. No wallet or any other ID. Part of my reasoning is that if something happens like I have a heart attack or get hit by a car, the cellphone has enough information about me that any authorities who respond to the scene would be able to look at it and know who I am within a couple of minutes. If I'm unable to properly communicate and obviously in urgent need of medical care, it would be most unfortunate if the authorities were bound by a law that says they are not allowed to touch my cellphone without getting a search warrant.
As I said, I'm all for laws that prevent the authorities from exercising their powers in ways that represent an unreasonable invasion of privacy, but we need to be careful that we don't overly restrict them in other kinds of situations where such access may be important.
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AC is confusing two separate types of searches. He states that he is not carrying any ID except for that on the Phone. Lets say that he DOES have ID. Does he want the police to refrain from looking in his pockets or fanny pack for an ID? There is no difference between looking in your pockets for ID and looking on your Cell Phone Address Book for an ICE (In Case of Emergency) number (or other entries with likely nicknames like Mom or Dad) in this type of situation. This is a case where the Police SHOULD be able to look there and in your pockets.
The law is for cases where there is no need to do an unauthorized search or fishing expedtion unrelated to why they are interacting with you (ie: To issue you a Ticket for a traffic offense or at a DWI/etc. check point).
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As to the article: I fail to see why the police need to be searching data on the cellphone during a stop. An exception would be if the person were accused of driving while texting, or a similar offense, where the cellphone itself might be evidence. But if it's not evidence and not a threat to the officers, why search it?
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Re: Cell Phone Searching in an Emergency
AC is confusing two separate types of searches. He states that he is not carrying any ID except for that on the Phone. Lets say that he DOES have ID. Does he want the police to refrain from looking in his pockets or fanny pack for an ID? There is no difference between looking in your pockets for ID and looking on your Cell Phone Address Book for an ICE (In Case of Emergency) number (or other entries with likely nicknames like Mom or Dad) in this type of situation. This is a case where the Police SHOULD be able to look there and in your pockets.
The law is for cases where there is no need to do an unauthorized search or fishing expedtion unrelated to why they are interacting with you (ie: To issue you a Ticket for a traffic offense or at a DWI/etc. check point).
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Duh, Dems R Big Govt
Dems want big Govt to rule your life, that's the Progress agenda. The Nanny State is their way to "Protect You from Yourself," and crush your Constitutional Rights to grow their influence.
California is rank with Govt Unions run amuck. Socialization of Risk is their motto and your Individual Rights listed in the Constitution are "in their way."
My favorite is their need to dictate what can you ingest because Big Govt is going to be paying your future Medicare bill.
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...
Look what Brown recently just passed - the "Amazon Tax", forcing out-of-state online retailers to charge tax to California residents; how they got the authority to tax out of state lines is beyond me, just more fruitiness from the crazy people in California's legislature. The power to tax is the power to destroy, even our own Supreme Court has said this before.
Again, meet Jerry Brown, same as the old boss...
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Someone would be proud...
We move towards a time when no one should trust any cop.
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Stay Logged Out
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