Courts: Search A Cell Phone? No Problem. Touch A Mouse? Violate 4th Amendment.
from the 4th-amendment-law-is-confusing dept
Julian Sanchez points us to a bizarre 4th Amendment ruling. While we've seen courts regularly pick away at the 4th Amendment, and allow things like warrantless wiretapping and tracking individuals via their phones without a warrant. In this case, the court ruled that touching a mousepad, thereby taking a laptop out of screensaver mode, constituted a "search" and was subject to the 4th Amendment. While I'm happy to see courts actually recognizing the importance of the 4th Amendment, and the need for law enforcement to obtain warrants, I'm having trouble understanding how this is a 4th Amendment search when those other -- much more invasive -- actions are not.The details of the case involve someone who posted a threat to Craigslist about bringing a gun to a mall. Police tracked the guy down at his house, and while there, one of them touched his mousepad, changing the screen from the blank screensaver mode to fully on, displaying some information that was used to arrest the guy. Since stuff seen in plain sight is not considered a search, the question is whether or not this uncovered things that were not in plain sight, and thus constituted a search. I can understand why the court ruled the way it did in this case (though I'm a bit surprised). I'm just struggling to understand how that's not a legal search, but something like scanning the entire contents of a mobile phone during a traffic stop is a legal search.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 4th amendment, laptops, mobile phones, privacy, search
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
You wouldn't look for a look for a big screen tv in someone's sock drawer for example. If its a small item, good luck...
Since they are talking computers... it can get interesting I am sure. Currently it seems once a computer is involved, they scan scour it...
[ link to this | view in chronology ]
[ link to this | view in chronology ]
This was not a warranted search. So when invited into a PRIVATE home, they can only observe, and not touch anything. IE, they cannot kick a box over to see what falls out, example. They only went to talk to the guy, nothing more at that point.
In a car, the rules have been set - anything that isn't unlocked and in range of the driver (pretty much the whole interior in many cases) is considered to be valid for search of a car in a public place on the public roads. That would include any documents in the car, or (not surprisingly) those documents as stored on a cell phone.
The search types are different, the circumstances are different, and the courts have long held the difference and supported it with judgement after judgement.
I know you don't like it - you seem to be pushing for more protection for criminals - but that is the state of the law, backed with hundreds of judgements.
[ link to this | view in chronology ]
Re:
While I don't disagree with the overall idea in your post, this statement just pisses me off.
No one is a criminal until after the trial is over. Please don't do this again if you want people to take your arguments seriously.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
I think it's worth noting that you are 100% wrong. First, innocent until proven guilty. Second, if a jury finds you innocent of breaking the law, then you are BY DEFINITION, not a criminal. You are making the mistake of conflating morality with legality.
[ link to this | view in chronology ]
Re: Re: Re: Re:
> wrong. First, innocent until proven guilty.
No, he's right. If a person is murdered, for example, then *someone* committed that murder and whoever that is is a criminal even if they haven't been tried (or even caught or identified).
If a crime occurs, it has to have had a perpetrator, and that perpetrator is by definition a criminal.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
...Sorry, now I'm just getting sarcastic.
[ link to this | view in chronology ]
Re: Re: Re: Re:
That's just a short-hand aphorism. The concept of the presumption of innocence is much more nuanced and rich than is expressed in that one-liner. Presumption of innocence is a rule of proof. It can best be summed up as saying that the burden of proof rests upon the prosecutor in criminal proceedings and doubt must benefit the accused.
If you like the most common formulation, it is better said as "Deemed innocent until proven guilty." Your guilt is a matter of fact. If you did something you are guilty of it. However, the courts only recognize guilt after all the proper hurdles have been cleared.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
Bullshit. You aren't guilty 'till you lost the third appeal.
Ok, snark aside, I respectfully disagree with you. "Guilt" in this context is a legal concept. Just "doing something" does not make you guilty. It is the judge and jury that decide whether or not there is "guilt". For instance, willfullness and intent are SUPPOSED to play a large part in the decision of whether a suspected criminal has broken a law (and therefore is "guilty" of breaking a law).
Yes, I'm nit-picking with words because that is all that laws are: words and semantics. It is a mistake to talk about our laws as if they are physical laws. Ever try arguing with gravity?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
In other words, I think I respectfully agree with you and feel stupid for once again getting involved in a definitional argument. Keep promising myself not to do it, but it's too tempting.
[ link to this | view in chronology ]
Re: Re:
No, you're a criminal until proven otherwise. I don't know where people come up with this "innocent until proven otherwise" crap, but it's sure something criminals love to spout off.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
He's never fully explored the locked screen question.
[ link to this | view in chronology ]
Re: Re:
You are looking at the magician's flash paper that Mike is trying to pull off, making you look in the wrong place for the wrong answer. It isn't a question of a device, because in a private home without a warrant, the police could not open a file box to see what is inside. But in a car, they have full right to open a box within the drivers reach without a warrant.
Don't get stuck on the "device" argument, it's meaningless.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
Unless there is an explicit order from the police to find a specific phone and its contents (which would enable them to check your phone because they'd stop you for that), then there's no reasoning in this world that justifies a search on your phone contents. And it is blatant rape of the 4th Amendment.
[ link to this | view in chronology ]
Re: Re: Re: Re:
It seems that the exact law is generally what they want it to be.
[ link to this | view in chronology ]
Re: Re: Re:
Phones nowadays ARE computers and we seem to be going opposite ways in how we are letting them be searched. Home computers are being protected and need a proper warrant to be searched but phones are continually getting less protection.
Then you can go even further with this and ask if they have a right to search my phone can they check my dropbox because I have an app for it oh my phone? What about my FTP? Remote desktop into my home PC and search that too?
As I said, the line between real computers and mobile devices is constantly blurring and we need to get a bit more consistent with how search procedures are applied to them.
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
> evidence so it doesn't matter.
That's completely wrong. Merely arresting someone doesn't give the police the right to then search their property and possessions. The police still need to get a warrant to search the home, files, etc. of the arrestee.
[ link to this | view in chronology ]
Re: Re: Re:
I think Mike's point is that the device argument *should not be meaningless*. It's one thing to search a car for any weapons etc, but once you see that the smartphone is within the driver's reach, all you should be able to do is see "oh, that's a smartphone". What is inside the smart phone should not be fair game, because it cannot possibly contain a weapon.
[ link to this | view in chronology ]
Re: Re: Re: Re:
A box of papers in your house, closed up, or a box of papers on the sidewalk open. Which one is secure, and which one is not?
The search of a car isn't limited to weapons.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
It should be, since that's the basis (officer safety) for all the search rulings that have been handed down over the years.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
I wasn't aware the sidewalk was a private place. Did you read his entire message, or just the bits you wanted to argue with?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
Having those files in your possession at the time of arrest makes them "searchable", no matter the location.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
And thus urinating in the toilet on a bus is "urinating in public" if it is on a public road, huh?.
The anti-Mikes are sure a bunch of loons.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
Oh boy, what an apologist, comparing the passenger compartment of a private automobile to an open box on a sidewalk.
Which one is secure, and which one is not?
Neither, from the likes of some.
[ link to this | view in chronology ]
Re: Re: Re: Re:
tl;dr; Moving a mouse or using a cellphone counts as a search. If you are arrested, they can search what you carry on you. If you invite them inside your house, they can't "search" they can only see what's in plain view.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
> you carry on you.
This rule was created before the invention of smartphones and the data they contain.
It's not clear at all that the police have a legal right to examine the exhaustive contents of your phone as a search incident to arrest. What if it's password protected? Do they have a right to demand you open it up for them? Do they have a right to access apps that lead to bank accounts, cloud storage, and/or give remote access to a home computer? If not, why not? If the cops can search the contents of the phone itself merely because it was on your person when you were arrested, why can't they search the apps themselves? The apps are on your person as well, right?
The reality is that this is an extremely gray area of the law right now, with a mashup of rulings coming from courts of various levels and various jurisdictions and there is nothing even resembling a hard and fast rule as to what's constitutional and what is not.
It's going to take the Supreme Court to settle it once and for all, and the sooner the better.
[ link to this | view in chronology ]
Re: Re: Re:
Oh, I see how that works. And if that phone has internet access as well, then "the internet" is within the driver's reach as well and anything that can be accessed by it is subject to warrant-less search as well. And I suppose the body cavities of the driver and passengers are included too. We might as well just get rid of the 4th amendment.
[ link to this | view in chronology ]
Keep your cellphone locked. If the officer asks for your phone, give it to him. If he asks you to unlock it for him, ask to see the search warrant. If you're asked to get out of your vehicle, immediatly close and lock the door. Again, if he asks for the keys, ask for the search warrant.
[ link to this | view in chronology ]
Re:
Oh, there is some nice but VERY bad legal advise. It isn't where you are standing now that matters, but rather where you WERE. In getting out, locking the door, and refusing access you have both created probably cause for a full warrant, and also likely gained yourself an obstruction of justice charge.
Talk about bad advice.
[ link to this | view in chronology ]
Re: Re:
You don't happen to work for the EFF, do you?
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
Or why don't you just sprout wings and fly? That would probably be just about as realistic. Seriously, I used to teach driving classes and I don't think I've *ever* seen someone drive more than just a few blocks without doing something they could bet pulled over for if a cop wanted to (and usually before they even get out of their driveway).
[ link to this | view in chronology ]
Re: Re:
The term is 'probable cause'.
And locking a car door in and of itself does not establish probable cause that a crime has been committed or that there is evidence of a crime in the car (which is what must be established for probable cause to exist), nor does it satisfy the elements of obstruction.
[ link to this | view in chronology ]
Re: Re: Re:
It was probably a typo. I've made that particular one myself. And this forum doesn't let you go back and make corrections.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Next: full raids in houses without warrant ok but lifting toilet lid a breach of 4th Amendment.
[ link to this | view in chronology ]
A search of a person's home is much different from a search of someone during a traffic stop. For one thing, there is no need to do an inventory search of someone's home. While it's quite common during a traffic stop. And because basically everything is searchable during a traffic stop, courts have stretched that to even laptops and cell phones. Even though their contents cannot be inventoried in any meaningful way.
[ link to this | view in chronology ]
Re:
Not sure why you think this. There are tools available now that can fairly quickly copy a laptop's hard drive, and I believe I've read there are tools that can do this with a smartphone's storage as well. Oh, and by the way, they won't ever dispose of their copy. You know, just in case.
Here is a related story (sorry about registration notices):
http://www.nysun.com/national/customs-agents-copy-travelers-laptop-phone-data/80735/
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Is it legal for police to 'unlock' my phone?
[ link to this | view in chronology ]
marvelous source of info
[ link to this | view in chronology ]
Courts search a cell phone! YES!
[ link to this | view in chronology ]