Courts: Search A Cell Phone? No Problem. Touch A Mouse? Violate 4th Amendment.

from the 4th-amendment-law-is-confusing dept

Tue, Oct 4th 2011 8:56am — Mike Masnick

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.

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Filed Under: 4th amendment, laptops, mobile phones, privacy, search

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ComputerAddict (profile), 4 Oct 2011 @ 9:00am

What would also be interesting to know is how this applies to PC's or laptops with external mice. As body slamming a suspect the the ground is likely to vibrate the mouse enough to wake up a PC, but a solid state touch pad wouldn't..
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blaktron (profile), 4 Oct 2011 @ 9:01am

What if you don't 'touch' anything to turn off the screen saver, like blow on the mouse to move it etc... normally Im all about personal privacy, but i figure if they already have a warrant to be in your house, anything on a screen not behind a password is probably fair game, sorta like an unlocked drawer...
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anonymous, 4 Oct 2011 @ 9:17am

'let's just make it up as we go along' seems to be the order of the day now for courts everywhere. if it suits at the time, use it, if it doesn't, change it. simples!
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Anonymous Coward, 4 Oct 2011 @ 9:17am

Mike, you sort of have to read the full story to understand what happened here.

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.
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Anonymous Coward, 4 Oct 2011 @ 9:22am

Re:
>> you seem to be pushing for more protection for criminals

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.
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PlagueSD (profile), 4 Oct 2011 @ 9:26am

Moral of the story:

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.
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AdamBv1 (profile), 4 Oct 2011 @ 9:31am

Re:
The thing is while a cell phone sitting on a seat is in plain sight is all the data on it in plain sight? If you can't even disturb a mouse and turn off a screen saver how can you justify getting past a lockscreen on a smartphone (not even talking about a password protected one, just the normal lockscreen a touchscreen phone uses)?
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Chronno S. Trigger (profile), 4 Oct 2011 @ 9:34am

Re: Re:
He's arguing that the physical location of the phone makes all the difference. If it's in your home, it's protected; if it's in your car, your screwed.

He's never fully explored the locked screen question.
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Anonymous Coward, 4 Oct 2011 @ 9:41am

Just tape a mouse to your cell phone. Problem solved.
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Anonymous Coward, 4 Oct 2011 @ 9:41am

Re: Re:
Adam, it's about location... the house is a private area, the car is private, but the courts have deemed the area of the driver's reach to be "personal space" which can be checked.

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.
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Chronno S. Trigger (profile), 4 Oct 2011 @ 9:48am

Re: Re: Re:
What is the exact law on that. Can they search any unlocked container within easy reach of the driver whenever they feel like it, or do they need probable cause? Like, if I get pulled over for speeding, can they search my glove box (my current one doesn't have a lock) for drugs, or do they have to have reason to think I have drugs?
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AdamBv1 (profile), 4 Oct 2011 @ 9:53am

Re: Re: Re:
I know this is what the law currently says, my point is how can you say this makes sense and is consistent?

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.
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DCX2, 4 Oct 2011 @ 9:55am

Re: Re: Re:
I didn't realize the security of my papers and personal effects should be contingent on which private place they're in.

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.
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AdamBv1 (profile), 4 Oct 2011 @ 9:57am

Re: Re: Re: Re:
Also I do constantly have my laptop in my car as well, do they have full rights to search that as well?
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Anonymous Coward, 4 Oct 2011 @ 10:01am

Re: Re: Re: Re:
House is private on a private land. Car in most likely in a very private place when alleged criminal gets pulled over. They use the argument they refuse to have us use against them: public places.
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Anonymous Coward, 4 Oct 2011 @ 10:07am

Re: Re: Re: Re:
"I didn't realize the security of my papers and personal effects should be contingent on which private place they're in."

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.
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PrometheeFeu (profile), 4 Oct 2011 @ 10:15am

Re: Re: Re: Re:
It's not actually the location that matters. It's the circumstances that lead to the information being uncovered. When you are arrested, police officers can perform a "search incident to arrest" which would otherwise be a violation of your 4th amendment right. Basically, they can search your person and what you carry. Since your phone is on your person, it is covered by the "search incident to arrest". If a police officer knocks on your door and you let them in, (a bad idea BTW) they are allowed to use their eyes and see what is in "plain view". However, being in your house does NOT allow them to search your house. They are allowed to use their eyes and notice anything that is "in plain view" such as a printout lying on your coffee table or a pot plant in your open closet. Similarly, if your computer screen is on, they can look at what is currently displayed. Same for your phone. But, they cannot pick up your phone and pull up data, nor can they start using your computer because that is then a search which was not authorized.

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.
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Chronno S. Trigger (profile), 4 Oct 2011 @ 10:18am

Re: Re: Re: Re: Re:
A car is still considered private property. A phone is also more analogous to a closed, locked briefcase; no matter where it is, it's still considered private property. Not saying that your argument is wrong, I'm just saying that the fact your argument is right is wrong.
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PrometheeFeu (profile), 4 Oct 2011 @ 10:19am

Re: Re: Re: Re: Re:
That's not the issue. Your car is private. But if you get arrested, you and your car can get searched. In this case, the cops had no right to search that house. They were invited them in which only allows them to look, not search. Moving the mouse to reveal what was behind the screen saver was a search. An illegal one. Same would have been true if the cop had instead started looking through a cellphone.
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Anonymous Coward, 4 Oct 2011 @ 10:42am

Re:
"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."

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.
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Anonymous Coward, 4 Oct 2011 @ 11:05am

Re: Re:
probably cause

You don't happen to work for the EFF, do you?
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Ninja (profile), 4 Oct 2011 @ 11:15am

You see, when you slide the screen to unlock the cell phone it's like touching the mouse to come back from the screensaver. Which means a cell phone is actually some high tech mouse and thus subject to 4th Amendment.

Next: full raids in houses without warrant ok but lifting toilet lid a breach of 4th Amendment.
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Ninja (profile), 4 Oct 2011 @ 11:23am

Re: Re: Re: Re:
My thoughts. If you were stopped for speeding why the heck would a cop need to peep on your phone contents? Even if the guy is stopped for driving drunken and they need evidence they can simply check the car for alcohol, you can hardly get drunk from using your phone.

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.
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lucidrenegade (profile), 4 Oct 2011 @ 11:26am

Re: Re: Re: Re: Re:
Considering there seems to no punishment for police who falsely arrest someone, I foresee it being an excuse to conduct these searches.
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PlagueSD (profile), 4 Oct 2011 @ 11:27am

Re: Re:
Oh, you want some GOOD legal advise? Don't do anything to get pulled over in the first place. This country is in a downward spiral in regards to the Constitutional Bill of Rights lately. I'm not one of the sheeple that just roll over when told to.
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Anonymous Coward, 4 Oct 2011 @ 11:30am

Re: Re: Re: Re: Re: Re:
Not a very bright alleged criminal nonetheless. Who the hell "invites" law enforcement when they do, in fact, have something to hide, and leave it in plain sight. He was asking for it.
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Ninja (profile), 4 Oct 2011 @ 11:32am

Re: Re: Re: Re: Re: Re:
If you are arrested then they can search for evidence so it doesn't matter. But if you are stopped by other reasons then I don't think the police has any right to barge in your personal life.
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Anonymous Coward, 4 Oct 2011 @ 11:41am

Re: Re:
I think it's worth noting that people ARE criminals if they've broken the law, whether or not a jury of their peers find them to be so. But, to your point, our justice system (and the officers thereof) must treat someone as innocent until they've been proven guilty in a court of law.
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Anonymous Coward, 4 Oct 2011 @ 11:42am

Re: Re: Re:
Also, I am not the original AC.
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Anonymous Coward, 4 Oct 2011 @ 12:11pm

Re:
They didn't have a warrant, he invited them in.
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Ima Fish (profile), 4 Oct 2011 @ 12:15pm

"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."

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.
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PrometheeFeu (profile), 4 Oct 2011 @ 12:27pm

Re: Re: Re: Re: Re: Re:
You have an amazing ability to foresee the past. I'm pretty sure false-arrests make the "search-incident to arrest" illegal. But I'm not a lawyer. I just read loads of law blogs.
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BentFranklin (profile), 4 Oct 2011 @ 12:33pm

I'd like to see the arguments about the constitutionality of computer/smartphone searches take another tack. We are increasingly using electronics as an extension of our minds, and the distinction between them will become increasingly blurred. So, the right to cryptography and to not have our electronics searched *anywhere* should be seen as an extension of the right to remain silent.
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Almost Anonymous (profile), 4 Oct 2011 @ 12:42pm

Re: Re: Re:
"""I think it's worth noting that people ARE criminals if they've broken the law, whether or not a jury of their peers find them to be so."""

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.
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Almost Anonymous (profile), 4 Oct 2011 @ 12:51pm

Re:
"""Even though their contents cannot be inventoried in any meaningful way."""

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/
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btr1701, 4 Oct 2011 @ 1:12pm

Re: Re: Re: Re:
> I think it's worth noting that you are 100%
> 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.
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btr1701, 4 Oct 2011 @ 1:16pm

Re: Re: Re: Re: Re: Re: Re:
> If you are arrested then they can search for
> 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.
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btr1701, 4 Oct 2011 @ 1:17pm

Re: Re: Re: Re: Re:
> The search of a car isn't limited to weapons.

It should be, since that's the basis (officer safety) for all the search rulings that have been handed down over the years.
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btr1701, 4 Oct 2011 @ 1:27pm

Re: Re: Re: Re: Re:
> If you are arrested, they can search what
> 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.
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PrometheeFeu (profile), 4 Oct 2011 @ 1:29pm

Re: Re: Re: Re: Re: Re: Re:
Who the hell "invites" law enforcement in their house period?
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btr1701, 4 Oct 2011 @ 1:31pm

Re: Re:
There's no such thing as 'probably cause '.

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.
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PrometheeFeu (profile), 4 Oct 2011 @ 1:40pm

Re: Re: Re: Re:
"First, innocent until proven guilty. "

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.
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Jeffrey Nonken (profile), 4 Oct 2011 @ 1:42pm

Re: Re: Re: Re: Re:
Nevertheless, AC@9:17 is having trouble with the "innocent until proven guilty" concept. Those "protections for criminals" are intended to protect the innocent and assure that even the guilty are given a fair hearing. AC appears to assume that anybody who needs such protections is ipso facto a criminal. This then suggests that the only purpose for a trial is to figure out just how guilty the person is so as to conjure up a suitable punishment. Like, death by dismemberment for jaywalking.

...Sorry, now I'm just getting sarcastic.
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Jeffrey Nonken (profile), 4 Oct 2011 @ 1:46pm

Re: 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?"

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?
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Jeffrey Nonken (profile), 4 Oct 2011 @ 1:51pm

Re: Re: Re:
"There's no such thing as 'probably cause '."

It was probably a typo. I've made that particular one myself. And this forum doesn't let you go back and make corrections.
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Anonymous Coward, 4 Oct 2011 @ 2:03pm

Re: Re: Re: Re: Re: Re:
I read it, I was just making a very extreme example. The car driving down the road, stopped for speeding, example, is private, but the area of the driver's reach is no more private that something that might be on him if he was stopped and changed with urinating in public.

Having those files in your possession at the time of arrest makes them "searchable", no matter the location.
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Anonymous Coward, 4 Oct 2011 @ 2:27pm

Re: Re:
No one is a criminal until after the trial is over.

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.
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Anonymous Coward, 4 Oct 2011 @ 2:38pm

I can tell this guy was not a user of Gnome3 because he would never have had his desktop exposed like that.
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Anonymous Coward, 4 Oct 2011 @ 2:41pm

Re: Re: Re:
Adam, it's about location... the house is a private area, the car is private, but the courts have deemed the area of the driver's reach to be "personal space" which can be checked.

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.
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Anonymous Coward, 4 Oct 2011 @ 2:43pm

Re: Re: Re: Re:
What is the exact law on that.

It seems that the exact law is generally what they want it to be.
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Anonymous Coward, 4 Oct 2011 @ 2:47pm

Re: Re: Re: Re: Re:
A box of papers in your house, closed up, or a box of papers on the sidewalk open.

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.
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Anonymous Coward, 4 Oct 2011 @ 2:51pm

Re: Re: Re: Re: Re: Re: Re:
The car driving down the road, stopped for speeding, example, is private, but the area of the driver's reach is no more private that something that might be on him if he was stopped and changed with urinating in public.

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.
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Anonymous Coward, 4 Oct 2011 @ 3:00pm

Re: Re: Re:
Oh, you want some GOOD legal advise? Don't do anything to get pulled over in the first place.

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).
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Almost Anonymous (profile), 4 Oct 2011 @ 4:07pm

Re: Re: Re: Re: Re:
"""Your guilt is a matter of fact. If you did something you are guilty of it."""

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?
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PrometheeFeu (profile), 4 Oct 2011 @ 4:39pm

Re: Re: Re: Re: Re: Re:
You're not being any more nit-picky than anyone else on this. It all depends how you define "guilt". Are we talking about "guilt" in a whodun'it sort of way? (+mens rea etc...) Or "guilt" is a "convicted" sort of way? Not a particularly interesting discussion.

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.
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PrometheeFeu (profile), 4 Oct 2011 @ 4:42pm

Re:
I think that would probably depend. If you blow on the mouse in order to turn off the screen saver, I bet that's a search. On the other hand if he has a very sensitive mouse and the mere act of walking next to the desk turns off the screen save, I think that would not be a search. If a cop really wanted to be a jerk, I bet he could get away with bumping against the desk, to move the mouse and claimed it was accidental. That's a lesson: Password-protect your screen-saver. Then you won't have to deal with 4th amendment issues when it comes to that.
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ofb2632 (profile), 4 Oct 2011 @ 4:45pm

Is it legal for police to 'unlock' my phone?
Is it legal for police to click the two buttons on my phone to unlock it and then view all the contents of my cell? If i don't give him permission, that is the basic definition of hacking.
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Phil G., 5 Oct 2011 @ 10:15am

Re:
A search warrant is usually specific and not just to come in and go through everything you have. Generally, they can look at what the warrant specifies and only in reasonable places where the item(s) may be found.

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...
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isolinx, 11 Nov 2011 @ 10:48pm

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joe, 22 Mar 2012 @ 8:14pm

Re: Re:
So, that guy that broke your window and is stealing your TV and jewelry isn't a criminal? Use your lack of legal definitions elsewhere.
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Matty boi, 16 Apr 2014 @ 8:38am

Courts search a cell phone! YES!
Don't no it it's the same her in aus but from wat u said sounds like ur in for a rude shock! I had argument with mother one night, said some stupid things and went for a walk to cool off! (Apparently mum was worried I was still in room and thought maybe I hurt myself) By time I got home there where how ever many pigs or cops or who ever they think they are.. in house and yard, asking me if I was Matt... I couldn't even get near my mum before they said the found a .22 cal, which I hid pretty good like no way they seen that by accident, No comment I said!! So I arrested on the spot, but wait there's more... They found my hydro set up hidden in cupboard, ripped out my plants and stole my lights, charged with cultivating , I said no comment officer lol! took my sling shot which was a charge as well! No comment I said, took my ww2 ak and .44 rounds with 1941 or 1942 printed on the bottoms and took a couple of .22's, yep more charges and more no comment from me! took 8 phones which I never got back and a couple of USB sticks, no comment officer, took 2 computers which I eventually got back and smashed em obviously after they touch!! 1 comment officer, they family computers ;) which rounded off my whole "one sentence worth" of there hours of questions and interview!! Mind u the dogs stole heaps more things from my room which they kept off the record! The best part of it guys .. Got SECTION 32 for gun and or section 9 or something? ( both no convictions lol) and about 2 yrs worth of councilling crap and 1grand fine for cultivating and ammo and a bloody slingshot!!!!!! :) funny shit ay! And I didn't dog on no one!!! Just goes to show if dumb asses keep there mouths shut when interegated they be alrigh!! No need for mrs getting shot! Just keep quiet ;) ;) f#%k the police they can Come get me again anytime! POINT BEING THEY BE KICKING BOXES OVER MATEY! don't u worry about that!!!!!
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