Court: No Warrant Needed To Search Cell Phone
January 5, 2011 1:22 PM   Subscribe

"If you get arrested in California, better hope there are no incriminating texts or e-mails or sensitive data stored on your phone. On Monday, the California Supreme Court ruled [PDF] that police in that state can search the contents of an arrested person's cell phone."
"Citing U.S. Supreme Court precedents, the ruling contends that 'The loss of privacy upon arrest extends beyond the arrestee's body to include "personal property ... immediately associated with the person of the arrestee" the time of arrest.'"
posted by ericb (87 comments total) 11 users marked this as a favorite

 
"Expect the California ruling to be challenged -- perhaps in the U.S. Supreme Court. The San Francisco Chronicle reports, 'This issue has divided other courts. U.S. District Judge Susan Illston of San Francisco ruled in May 2007 that police had violated drug defendants' rights by searching their cell phones after their arrests.'"*
posted by ericb at 1:24 PM on January 5, 2011 [1 favorite]


If only there was some kind of software that you could use to 'lock' your phone in such a way that only the person who knew the password could open it.
posted by mullingitover at 1:25 PM on January 5, 2011 [11 favorites]


California, the bellwether state!
posted by blucevalo at 1:26 PM on January 5, 2011 [1 favorite]


does this ruling open the door on your personal computer, if you are carrying it with you? and how about I phones, thats a small cell phone with a small internet computer. can the police search all that I phone data?
posted by tustinrick at 1:27 PM on January 5, 2011


Okay, but. Say I'm arrested while carrying a backpack. Inside the backpack is a portfolio folder; inside the folder is an envelope. The police can search the bag; they can open the folder; they can open the envelope and read its contents.

Isn't a smartphone just a container for data?

Clearly I'm missing something here.
posted by Zozo at 1:29 PM on January 5, 2011 [4 favorites]


orin kerr's analysis of similar case in georgia, from volokh
posted by r_nebblesworthII at 1:29 PM on January 5, 2011 [1 favorite]


That first sentence reads to me like "If you get arrested in California, better hope there are no unregistered firearms or bulging baggies of cocaine shoved down your pants."
posted by Zozo at 1:30 PM on January 5, 2011 [3 favorites]


Related: Smart Phone Banking on the Rise, but is it Safe? (NPR audio / transcript)
posted by filthy light thief at 1:34 PM on January 5, 2011 [1 favorite]


Zozo: “Okay, but. Say I'm arrested while carrying a backpack. Inside the backpack is a portfolio folder; inside the folder is an envelope. The police can search the bag; they can open the folder; they can open the envelope and read its contents. Isn't a smartphone just a container for data? Clearly I'm missing something here... That first sentence reads to me like ‘If you get arrested in California, better hope there are no unregistered firearms or bulging baggies of cocaine shoved down your pants.’”

No. There are limits on searches incident to a lawful arrest. For example, police are only allowed to search your own person; they aren't allowed to search your car unless there's some relationship between the car and the arrest or the thing you're being arrested for.

An arrest doesn't mean police are allowed to go to your house and search all of your papers and belongings without a warrant. And given that (a) police often arrest people without anyone being guilty (police will agree with this; it's not their job to ascertain guilt) and (b) many people do keep their whole lives on their smartphones, this is sort of a big question, I think.
posted by koeselitz at 1:36 PM on January 5, 2011 [20 favorites]


I too have trouble getting my outrage on over this. If arrested, it seems reasonable that the police can look through your text messages on your phone. The courts though will have to sort through the gray area of smart phones. Certainly the police shouldn't be able to make me sign onto gmail on an iphone or something, but looking at data actually stored on the phone seems entirely reasonable.

And yes, certainly people keep a lot of their lives on their smart phones. But I keep a lot of my life together in my wallet too and I am pretty sure the police can look at that.

(Oh, and that ultimate authority on how cops work, The Wire, shows McNulty & Co. looking through perp's phones all the time. So goes Baltimore, so goes the nation!)
posted by boubelium at 1:42 PM on January 5, 2011


An arrest doesn't mean police are allowed to go to your house and search all of your papers and belongings without a warrant.

But the phone is on my person. It's much more like the backpack in my analogy than it is like my house.

(The discussion in r_nebblesworthII's link about smartphones being containers of unprecedented capacity makes me want to see a Law and the Multiverse post about bags of holding.)
posted by Zozo at 1:44 PM on January 5, 2011 [1 favorite]


If only there was some kind of software that you could use to 'lock' your phone in such a way that only the person who knew the password could open it.

wow, what a dumb remark. haven't you ever been asked by a cop if you'd mind him taking a look around? ever heard that tired old phrase "I can't help you if you don't...?"

pressuring "suspects" is real and not everyone is able to resist a strong suggestion from a person with a say over whether they go home that evening.
posted by krautland at 1:45 PM on January 5, 2011 [1 favorite]


For example, police are only allowed to search your own person; they aren't allowed to search your car unless there's some relationship between the car and the arrest or the thing you're being arrested for.

So.. if you are pulled over and you don't want the cops looking at you cell phone records, casually toss it under your seat before they get out of their car.
posted by edgeways at 1:46 PM on January 5, 2011 [1 favorite]


Certainly the police shouldn't be able to make me sign onto gmail on an iphone or something

So where do you draw the line? My phone is logged into gmail by default.
posted by phaedon at 1:49 PM on January 5, 2011 [2 favorites]


edgeways: “So.. if you are pulled over and you don't want the cops looking at you cell phone records, casually toss it under your seat before they get out of their car.”

Well, no. When I said "relationship with the arrest," I meant... well, if you're sitting in your car when you're arrested, then they're allowed to search your car. Sorry. And for precisely this reason. Substitute "bloody knife" for "cell phone" in your formula and you'll see why. This isn't an old question, really.

Zozo: “But the phone is on my person. It's much more like the backpack in my analogy than it is like my house.”

I agree. I'm not saying I'm outraged about it; only that I think it's a real question whether it makes sense. Warrantless searches are sort of an edgy thing. It's worth hacking this out in court and actually considering it, and I don't think it's an obvious thing.
posted by koeselitz at 1:51 PM on January 5, 2011


Wait wait wait wait, this presupposes that law enforcement officers have to follow rules and laws governing their behavior. I thought it was optional.
posted by fuq at 1:54 PM on January 5, 2011 [11 favorites]


krautland: "wow, what a dumb remark. haven't you ever been asked by a cop if you'd mind him taking a look around? ever heard that tired old phrase "I can't help you if you don't...?"

Thanks for the constructive criticism. No, I've never been asked by the police if I'd mind them taking a look around.

"pressuring "suspects" is real and not everyone is able to resist a strong suggestion from a person with a say over whether they go home that evening."

If I had something incriminating on my phone and I allowed the police to take a peek, wouldn't I be getting in trouble anyway? I think "No officer, I don't think you need to see my sexting activities today" seems like a reasonable excuse to decline the search.
posted by mullingitover at 1:56 PM on January 5, 2011 [1 favorite]


Well, no. When I said "relationship with the arrest," I meant... well, if you're sitting in your car when you're arrested, then they're allowed to search your car. Sorry. And for precisely this reason. Substitute "bloody knife" for "cell phone" in your formula and you'll see why. This isn't an old question, really.

That's not true (in the US, afaik). They can't search the car without a warrant unless there's a reasonable belief* that evidence of the crime for which you were arrested is in the car. If the cops think you drove away after stabbing someone, they could search the car, but not if the stabbing happened a week ago. Of course, why you would still have the bloody knife in the car a week later is a whole other question.

* of course, this notion of reasonablity is open to quite a bit of interpretation
posted by axiom at 1:58 PM on January 5, 2011 [1 favorite]


If arrested, it seems reasonable that the police can look through your text messages on your phone.

Not to me. This seems like not only a fourth amendment issue, but a fifth amendment issue too. If the cop says, "show me everything you texted or emailed to anyone today," he is in effect forcing me to incriminate myself for not only the thing I'm being arrested for, but anything else I may have been involved in ever. Not to mention reveal pretty much my entire personal life. To me text messages in particular are less like written records, and more like conversations that happen to be archived by my phone unless I specifically tell it not to.

This is exactly why search warrants are given only by judges, and only to look for specific, reasonable things.
posted by drjimmy11 at 1:58 PM on January 5, 2011 [14 favorites]


Substitute "bloody knife" for "cell phone" in your formula and you'll see why. This isn't an old question, really.

That's not even a good analogy. At best, this means they should be able to do a keyword search for messages containing "bloody knife," not page willy-nilly through your personal life, including messages to and from your doctor, spouse, etc.
posted by drjimmy11 at 2:00 PM on January 5, 2011 [1 favorite]


So where do you draw the line? My phone is logged into gmail by default.

Yeah, that is the gray area. Maybe any content that is physically on the phone is fair game... so whatever works in Airplane mode? That seems a quite unsatisfactory answer though, which leads me to want the phone to be off limits, but that seems an excessive restriction on law enforcement.

I have little faith in the court's ability to sort this out before the technology moves on and creates a new set of problems.
posted by boubelium at 2:01 PM on January 5, 2011


krautland: “wow, what a dumb remark. haven't you ever been asked by a cop if you'd mind him taking a look around? ever heard that tired old phrase "I can't help you if you don't...?" pressuring "suspects" is real and not everyone is able to resist a strong suggestion from a person with a say over whether they go home that evening.”

Huh? This doesn't make sense. We're not talking about being pulled over, and having a cop want to snoop a bit. We're talking about being arrested. And no, I really don't think any cop has ever uttered the phrase "mind if I take a look around?" after arresting somebody. She or he just takes a look around. That's allowed by the law – at least if you're in a car at the time of your arrest.

I take your point, I think; these rules have be laid down carefully and enforced, because most arrestees can't be expected to know them (and many arrestees are innocent, believe me). But your analogy is way off the mark. An analogous situation would be if the police arrest you and then proceed to go to your parents' house and search the place without a warrant.

To be perfectly clear, I guess, this does not, nor ever will, mean that police can search your cell phone because they've pulled you over for speeding or something. The only thing that grants them the right to do these limited warrantless searches is if they've arrested you.
posted by koeselitz at 2:02 PM on January 5, 2011


Note items three and four. Then read part two. Then, as mullingitover suggests, lock your phone. If the phone has an option that'll delete your data after a certain number of wrong-password attempts, turn it on.

I hope this ruling won't stand, but there are ways to protect yourself even if it does.
posted by vorfeed at 2:04 PM on January 5, 2011


drjimmy11 - Here is my problem with setting text messages off limits. If I printed them off and had them in my pocket, then the cop could look through them. But if I put them on a digital device they become sacrosanct? That doesn't seem right.

Regarding self incrimination, I don't believe I would be required to show a cop how to access things on my phone. If I have my phone in my pocket and the cop takes it while arresting me, then they may (or may not be, depending on how this all shakes out) have it, but if they can't figure out my phone, then fuck em. Hell, I try to avoid giving my parents tech help; I'll be damned if I am going to give cops tech support.
posted by boubelium at 2:06 PM on January 5, 2011 [2 favorites]


Warrantless searches? There's an app for that.
posted by Ratio at 2:08 PM on January 5, 2011 [6 favorites]


If only there was some kind of software that you could use to 'lock' your phone in such a way that only the person who knew the password could open it.

I wonder what a police officer would do if a detainee claimed not to remember the password.
posted by ricochet biscuit at 2:09 PM on January 5, 2011 [1 favorite]


Huh? This doesn't make sense. We're not talking about being pulled over, and having a cop want to snoop a bit. We're talking about being arrested. And no, I really don't think any cop has ever uttered the phrase "mind if I take a look around?" after arresting somebody. She or he just takes a look around. That's allowed by the law – at least if you're in a car at the time of your arrest.

On the other hand, if you haven't been arrested, but they would LIKE to arrest you, they'll ask.

I was stopped leaving a party out in the desert a few years ago, and my repeated "I would prefer if you didn't" to the officer repeatedly asking me if he could look through my truck irritated him, but only because he knew I knew what I was doing and he wasn't going to be able to trick me. And because I was unfailingly polite about it, he really couldn't do anything about it.

It's a pretty good standby phrase. You can't STOP them from doing anything, but if you assert that you don't want them to, politely, if they go ahead and search anyway it's going to be easy to have thrown out. And they know it.
posted by flaterik at 2:13 PM on January 5, 2011 [2 favorites]


I wonder what a police officer would do if a detainee claimed not to remember the password.

Well, there's the idea of deniable encryption, which had an implementation out quite a few years ago.

I will refrain from further commentary.
posted by mikelieman at 2:15 PM on January 5, 2011 [3 favorites]


me: “Substitute ‘bloody knife’ for ‘cell phone’ in your formula and you'll see why. This isn't an old question, really.”

drjimmy11: “That's not even a good analogy. At best, this means they should be able to do a keyword search for messages containing ‘bloody knife,’ not page willy-nilly through your personal life, including messages to and from your doctor, spouse, etc.”

My point was: there's not some magical zone you can toss stuff into just before arrest and police aren't allowed to search it. That's because, if there were, people would have a real easy out when it comes to hiding evidence of their guilt. The rules surrounding search and seizure are more complex, because it can't be as simple as "police aren't allowed to search your car."

As someone pointed out above, people are in fact allowed to "page willy-nilly through your personal life" if they wish once they've arrested you lawfully, insofar as your personal life is on you at the moment. Love letters from your sweetheart, pictures of your kids, your personal financial information, etc – all of it is fair game so long as you have it on you when you're arrested. I have a hard time imagining how you could restrict this in a distinct and coherent way; are we supposed to tell police they can only look for weapons or tools used to commit the crime? These days it's quite possible to commit a crime with a cell phone. So what then?

Furthermore, it should be noted that police aren't even restricted to your person. They can do warrantless searches (incident to a lawful arrest) of any places and objects related to the crime. If you're suspected of shooting someone, I imagine they'd be allowed to do a warrantless search of your locker down at the gun club. If you're suspected of financial fraud, I imagine they'd be allowed to do a warrantless seizure of all of your files and papers. That may seem extreme, but it's how arrest works.
posted by koeselitz at 2:16 PM on January 5, 2011


I wonder what a police officer would do if a detainee claimed not to remember the password.

They wouldn't even have to claim not to remember, they are under no obligation to tell the cop anything if they've been arrested (and should know that following the Miranda warning).

Smartphones seem to be the real gray area here. They can provide windows into our lives with far greater depth than any papers we're typically carrying around in our pockets.
posted by crasiman at 2:23 PM on January 5, 2011 [1 favorite]


If I printed them off and had them in my pocket, then the cop could look through them. But if I put them on a digital device they become sacrosanct? That doesn't seem right.

If you actively say something in front of an officer, "I'm going to kill those people!", the officer can arrest you and use your words as evidence.

If you said something on the phone, while an officer wasn't present, they would (at least, historically...) have to get a wiretap warrant.

If they wanted a log of everyone you called, they'd need a warrant and talk to the phone company.

Likewise, if an officer wanted to search your home computer, they'd have to get a warrant. (Unless, you know, it's clearly implicated in an obvious crime, like you bludgeoned someone's head in with your iMac or something...).

Or, if they wanted to look at your bank records, they'd have to get a warrant and request info from the bank.

Even though a lot of that could be printed out and kept in your pocket- it's not.

Information does, indeed, change status based on how it's kept.
posted by yeloson at 2:24 PM on January 5, 2011 [4 favorites]


The cell companies would already hand over your texts and voicemails, so I think the only thing this would change for most people would be any pictures and videos they've personally taken, and any emails that are locally stored. Also, the talk about using passwords to keep the police out is hilarious - that'll take them, what, five minutes to break?
posted by Mitrovarr at 2:29 PM on January 5, 2011 [1 favorite]


"No, that won't be possible."
posted by iamkimiam at 2:39 PM on January 5, 2011 [1 favorite]


They can do warrantless searches (incident to a lawful arrest) of any places and objects related to the crime. If you're suspected of shooting someone, I imagine they'd be allowed to do a warrantless search of your locker down at the gun club.

How is the locker related to the crime? It's related to the suspect, but not to the crime.

If you're suspected of financial fraud, I imagine they'd be allowed to do a warrantless seizure of all of your files and papers.

Do you have any real experience with the law, or are you just spouting uninformed guesses?
posted by ryanrs at 2:39 PM on January 5, 2011 [2 favorites]


If what people are saying above about the limits on searches are true it seems like this issue should have come up in the past already with paper documents. Have there been cases where someone is arrested while carrying or transporting a crate with thousands of pages of paper documents, and the police going through and reading the documents has been deemed an illegitimate search? It would seem like, if you're being investigated for something like drug possession, they'd be able to confirm whether or not there were drugs in the crate but not read through all the documents.

Or I've got it - how about something like a camera? Have there been cases where someone was carrying a film camera when arrested and police have been prohibited from developing and examining the pictures on it?
posted by XMLicious at 2:39 PM on January 5, 2011


Also, the talk about using passwords to keep the police out is hilarious - that'll take them, what, five minutes to break?

Presumably they would need a warrant to break a password that you refused to give them. Which is a slightly higher standard than a mere arrest for "disorderly conduct" or "contempt of cop" or "driving while black". Of course refusing to give up the password would almost certainly be upheld as probably cause for a warrant, but it would buy you some more legal protections and a couple hours to engage your remote wipe.
posted by T.D. Strange at 2:43 PM on January 5, 2011


Information does, indeed, change status based on how it's kept.

In your examples the information is kept by a third party and is not physically present at the time of arrest.

If I were arrested somewhere with say, a monthly phone bill in one pocket, letters from people in another, and an ATM receipt showing my balance or latest transactions in my wallet, then the cops could look at all of that - it is all physically on my person. As an extension of this, if I put these items into the physical memory of a digital device, it would seem reasonable that the police could look at that too. The problem is that such devices do not really distinguish between what is physically present and what is stored elsewhere on the internet.
posted by boubelium at 2:43 PM on January 5, 2011


What a dreadful ruling. There is a huge difference between the kind of personal possession police normally can search for and seize incident to arrest and a cell phone, which these days is essentially a miniature personal computer. There is absolutely no reason why the police shouldn't be required to get a warrant to look inside an electronic communications device like a cell phone.

I am glad again to live in Washington, which is a heck of a lot more protective of personal privacy rights under our state constitution.
posted by bearwife at 2:45 PM on January 5, 2011


wow, all these postings about cops and searches, i 'm sorry i can not add any information because the 3 years i was a police officer in california, we did not have cell phones or computers back then, just common sense searches.
posted by tustinrick at 3:02 PM on January 5, 2011


ryanrs: “They can do warrantless searches (incident to a lawful arrest) of any places and objects related to the crime. If you're suspected of shooting someone, I imagine they'd be allowed to do a warrantless search of your locker down at the gun club.”

ryanrs: “How is the locker related to the crime? It's related to the suspect, but not to the crime.”

The weapon used to commit the crime might be there. See below.

me: “If you're suspected of financial fraud, I imagine they'd be allowed to do a warrantless seizure of all of your files and papers.”

ryanrs: “Do you have any real experience with the law, or are you just spouting uninformed guesses?”

I don't have any real experience with the law, no. I base this on a 2009 Supreme Court decision, Arizona v Gant [pdf], wherein the court ruled that it was lawful for officers to search an arrestee's car if "evidence of the offense for which he was arrested might have been found therein." [p 11] I grant that I might have been extending that decision a bit further than makes sense, but there's a basis for it, I think.
posted by koeselitz at 3:04 PM on January 5, 2011


This is another of those small erosion of our rights that is washing away the foundation of our country.
posted by Catblack at 3:11 PM on January 5, 2011 [2 favorites]


On the other hand, if you haven't been arrested, but they would LIKE to arrest you, they'll ask.

How do you know if you're under arrest? Police don't have to tell you "you're under arrest" for you to be under arrest.

(Indeed, I believe that it's often made up after the fact to justify their actions. I don't know why there's not a Miranda Right-esque requirement for this. I strongly suspect police want to keep the ambiguity for their own advantage.)

So you have a password lock on your phone. Assuming it's technically possible, is it legal for police to crack the password? Or is a warrant required at that point?

Once their in your phone, can they browse your txt messages? Your e-mail? Can they inspect your bank account and any online service you might be logged into? If they can hack the phone password to gain access, why not directly hack your account(s) without going through the phone?

This seems like a really bad idea.
posted by LordSludge at 3:15 PM on January 5, 2011


Of course, why you would still have the bloody knife in the car a week later is a whole other question.

Maybe you'd heard your car was the one place they couldn't search if they arrested you...

like you bludgeoned someone's head in with your iMac or something...

Cluedo, 21st century edition: Colonel Mustard, in the library, with the iMac.
posted by robertc at 3:29 PM on January 5, 2011


filthy light thief: Related: Smart Phone Banking on the Rise, but is it Safe? (NPR audio / transcript)

Elaboration: people are storing (and connecting to) more private, personal information from their smart phones, and if the police wanted to look further and knew which apps to open, they could get a lot more than your call, chat, and email history. The NPR story focuses on information stored in or accessible through banking apps, but there is more interesting history in anything that might log activities by time and location. Just thinking about it, there are fitness apps that track your travel by GPS and record that info.
posted by filthy light thief at 3:30 PM on January 5, 2011


I too have trouble getting my outrage on over this. If arrested, it seems reasonable that the police can look through your text messages on your phone.
If it's reasonable, then they shouldn't have too much trouble finding a judge who will sign a search warrant for it.
posted by Flunkie at 3:32 PM on January 5, 2011 [2 favorites]


The weapon used to commit the crime might be there.

If the police can articulate to the court probable cause to believe this is the case, then a search warrant is likely to be issued. I see no compelling reason the police should be allowed to proceed without one. I think this is clearly a case where a warrant is required.


I base this on a 2009 Supreme Court decision, Arizona v Gant, wherein the court ruled that it was lawful for officers to search an arrestee's car if "evidence of the offense for which he was arrested might have been found therein."

Cars are special. I wouldn't extrapolate vehicular search and seizure rules to other situations.
posted by ryanrs at 3:40 PM on January 5, 2011


It certainly adds a new incentive for police to find some minor crime on which on to arrest anyone of interest to them, doesn't it? You want to search their phone? Arrest them for loitering, or "disorderly conduct" then pillage a phone which contains more data than whole computer rooms from a while back. Doesn't really matter if the initial charge sticks.
posted by tyllwin at 3:41 PM on January 5, 2011 [1 favorite]


ryanrs: “Cars are special. I wouldn't extrapolate vehicular search and seizure rules to other situations.”

That's interesting. Like I said, I don't know a lot about the law. What makes cars particular?
posted by koeselitz at 3:50 PM on January 5, 2011


(I should add that the case makes it clear that he was not in the car at the time of his arrest. So my interest here is just this: if it's legal for the cops to go find your car and search it if there is a reasonable expectation that some kind of evidence will be there, why is it not legal with other places like a locker or a file? I hope it's clear that I don't want this to be the case. I happen to think this should be more limited than it is. Above and beyond all this, however, is the fact that I just don't know all the facts, and am interested in learning them.)
posted by koeselitz at 3:53 PM on January 5, 2011


Warrantless searches are per se unreasonable. They are allowed in a few circumstances where the safety of the arresting officer may be at risk. Warrant requirements have also been reduced in various situations involving vehicles. But I do not believe these exceptions are broad enough to include cell phones and computers.

Arrest the person, seize the phone, and apply for a warrant to search it. What's so hard about that?
posted by ryanrs at 3:53 PM on January 5, 2011


What makes cars particular?

You'd have to ask a lawyer about that. But cars are like the commerce clause of search and seizure.
posted by ryanrs at 3:56 PM on January 5, 2011


Metafilter: just spouting uninformed guesses
posted by meinvt at 3:57 PM on January 5, 2011 [3 favorites]


I wonder what a police officer would do if a detainee claimed not to remember the password.

Say you have notes on your iphone, which are password protected. If you use a very robust password, it won't be cracked, even by the NSA. I'm not sure what the situation is in the U.S., but in Britain, you'll end up with serious prison time if you refuse to reveal a password.

What I find interesting, though, is that it really can be the case that you don't remember a password you just used and have been using for years. It can happen when you are under stress - you just blank out. And being interrogated can be very stressful. Further, I know this is absolutely 100% true - if you asked me for certain passwords, I would not be able to tell you what they are, BUT I would be able to type them out due to mechanical/muscle memory. For example, I can't verbalize one of my ATM passwords, which I've used for years, but I can type it in a bank lightening fast. Now if I were sitting in a cell, unless they gave me the iPhone I may not be able to - sincerely not be able to - reveal my password.

So it is not merely a theoretical discussion - it really is possible to not remember a password. In fact, sometimes, when my wife asks me for some password, I blank out even when I'm not under stress... I need to come over to the computer and give it a few seconds and type it out.

This is what I find scary about the British law - you can end up on prison, being completely innocent, and simply unable to remember a password. This is a bad, bad law. I hope it's not the same here.
posted by VikingSword at 4:05 PM on January 5, 2011 [2 favorites]


To clarify, I have had quite a few discussions with my attorney regarding search and seizure in California. But we mostly talked about the law as it exists today, rather than the history behind the vehicle exemptions and how they came to be.
posted by ryanrs at 4:09 PM on January 5, 2011


I should add that the case makes it clear that he was not in the car at the time of his arrest.

First of all, the court ruled the search was UNreasonable, since the police had no reason to believe they would find evidence related to the crime (driving on a suspended license). Furthermore, I don't think you can say that Grant was not in the car at the time of his arrest. The police pulled him over, arrested him, stuck him in the back of the patrol car, then searched his vehicle. The court decision says that Grant wasn't in his vehicle at the time of the search (he was locked in the patrol car).
posted by ryanrs at 4:28 PM on January 5, 2011


Gah. I clearly can't read. Thanks for clearing that up, ryanrs.
posted by koeselitz at 4:51 PM on January 5, 2011


If you use a very robust password, it won't be cracked, even by the NSA.

I would not, for a variety of reasons, bet the proverbial farm on that.
posted by mhoye at 4:51 PM on January 5, 2011 [1 favorite]


T.D. Strange: Presumably they would need a warrant to break a password that you refused to give them. Which is a slightly higher standard than a mere arrest for "disorderly conduct" or "contempt of cop" or "driving while black". Of course refusing to give up the password would almost certainly be upheld as probably cause for a warrant, but it would buy you some more legal protections and a couple hours to engage your remote wipe.

I don't think they need a warrant to break a password on something they're otherwise allowed to search. That's like saying they'd need a warrant to search your luggage if it had a lock, but not if it didn't.

More than likely they'll just the get the same kind of hardware the cell phone companies have to do things like reset the passwords on cell phones or back them up. They'll just hook it up, download the entire contents of the device right around the password (unless you use some encryption mechanism) and search it later (probably with automated tools, except in special cases or if they are looking for something specific.)
posted by Mitrovarr at 4:52 PM on January 5, 2011 [1 favorite]


What I find interesting, though, is that it really can be the case that you don't remember a password you just used and have been using for years. It can happen when you are under stress - you just blank out.

In a similar vein, one summer, our apartment building had a small fire and they decided everyone had to leave since the power was out (why, I don't know). My mother was at work and I couldn't give the guy organising a phone tree to tell people when to come back my mother's cell phone number. I wasn't even aware I was stressed. (Seriously--I slept through the whole thing, my mother woke me, said "The building caught fire, it's out, the power's out and I'm going to work." Later a fireman came and banged on the door and said we were having a meeting across the street. Far less stressful than the X times the school kitchen caught fire.)

In response to something else said further up, apparently people do fall for the "Do you mind if I take a look around?" The cop at my school had been on a drugs task force of some sort and his entire talk in driver's ed was about how you should always say no to a cop asking to do something seemingly innocuous, lest your friend (or you) have left drugs lying around that you don't know about. Don't let them in your house, don't let them look in your car and so on. But, apparently, they get a long way by getting people to agree to innocuous-sounding searches.
posted by hoyland at 5:01 PM on January 5, 2011


If I were arrested somewhere with say, a monthly phone bill in one pocket, letters from people in another, and an ATM receipt showing my balance or latest transactions in my wallet, then the cops could look at all of that - it is all physically on my person.

It's credible to me to argue that the contents of a cell phone are not just loose items on your person -- the cellphone itself is a container, and its contents are only revealed on a decisive and intentional search "inside."

To me, there's a problem here that's caused by the intersection of the miniaturization trend and the concept of how deep the police are allowed to search. I think you could make a strong case that a pocket computer or storage is really analogous to something more like a file cabinet in a car (or, perhaps, a backpack on a person), and my understanding is that it's not always clear that police can search inside of everything there.

And further, however the technical legal argument falls out, I think there's a line in the spirit of the law this might be across. I'm guessing the idea is to balance the tension between (a) making sure the police can observe anything the suspect might be more or less obviously carrying (or anything that indicates a reasonable suspicion of containing something important) that could be relevant to a recently committed or in-progress and (b) making sure that citizens have a right to be secure in their papers and persons. The problem as I see it is there's only very rarely going to be any reasonable support for the idea that a cell phone is relevant. This decision enshrines the idea that they simply always are, no matter what the defendant has been arrested for, and IMO that eats away at the spirit of the 4rth.
posted by weston at 5:20 PM on January 5, 2011 [1 favorite]


you use a very robust password, it won't be cracked

Arguably true, but as Mitrovarr says unless your data is encrypted (which no smartphone I know of does, at least by default) this is irrelevant as they will simply mount the storage elsewhere (same way you can get to any files on a Mac/Windows/Linux machine with unencrypted disks regardless if you know the account passwords --- the only protection against _physical_ access to a computer is encryption which is often not easy to do in a convenient way).

However, this seems like an excellent reason to use a web browser to read your email instead of an app (or at least disable local storage on the app). If I do all my email through mobile gmail web interface, there will be little to nothing cached on my phone.
posted by wildcrdj at 5:45 PM on January 5, 2011 [1 favorite]


The password discussion is missing the point a bit. As the CNN article mentions the authorities wouldn't be allowed to break into your phone without a judge being involved, and you'd be within your right to keep the password a secret up until a court order.

"The police can ask you to unlock the phone -- which many people will do -- but they almost certainly cannot compel you to unlock your phone without the involvement of a judge"
posted by Defenestrator at 5:58 PM on January 5, 2011


I don't think such tension exists. Reasonable suspicion* is insufficient grounds to issue a warrant or make an arrest, much less conduct a warrantless search. What possible reason can there be to remove the courts from their traditional role of authorizing warrants? Certainly the safety of the officer and public will not be compromised if a cell phone is searched tomorrow rather than today. Just turn off the phone, place into evidence, and fill out the warrant paperwork.

Seriously, what's the problem here, police convenience? To hell with convenience, I want oversight. The fourth amendment safeguards the security of "persons, houses, papers, and effects." To me, that says cell phones.

* Reasonable suspicion is a legal term of art denoting a standard of proof less than probable cause
posted by ryanrs at 6:11 PM on January 5, 2011 [2 favorites]


Defenestrator: As the CNN article mentions the authorities wouldn't be allowed to break into your phone without a judge being involved, and you'd be within your right to keep the password a secret up until a court order.

I'm not sure it's legally the same for the cops to force you to reveal a password as it is for them to simply break into a system.
posted by Mitrovarr at 6:13 PM on January 5, 2011


They'll just hook it up, download the entire contents of the device right around the password (unless you use some encryption mechanism) and search it later

There's the strong argument for not keeping anything but commonly used (innocuous) data & apps on the phone. Everything else can be kept somewhere online that you know the PW for ... and noone else knows that it exists. You don't have to hand the SOBs anything on a platter.

Not that any of this should be a problem for anyone with a cell anyway, seeing as anyone who needs to can access your whereabouts at any time (until the battery goes dead). People who'll put up with -that- might as well not be upset about data ... your whereabouts spell -volumes- more about your real life than any little lists on a chip.
posted by Twang at 6:30 PM on January 5, 2011


Of course you don't have to reveal your password to the cops. Why are you even talking to them? Keep you mouth shut, damn it!
posted by ryanrs at 6:34 PM on January 5, 2011 [2 favorites]


Here is my problem with setting text messages off limits. If I printed them off and had them in my pocket, then the cop could look through them.
This is the problem with analogies. No one prints all their text messages and just carries them around with them.

Anyway, with people carrying lots of their lives around in their pockets, they really should not be allowed to just search them simply because you are arrested.
posted by delmoi at 7:16 PM on January 5, 2011 [1 favorite]


Fuck California. I swear, everything I hear about here is worse and worse, not better and better.
posted by fake at 8:16 PM on January 5, 2011


Here is my problem with setting text messages off limits. If I printed them off and had them in my pocket, then the cop could look through them.

Not if those papers are in a locked briefcase, according to precedent. A briefcase search needs a warrant.

The officer is clearly free to examine a phone without warrant. Not much to see - it has a few words and logos on it, but mostly it's a lump of black plastic and looks like any other phone. Maybe he can even open it, and see that there is a battery and a card inside it.

But issuing commands and operating a phone as if he were its owner/administrator, using it as a key to decrypt and display the hidden logs within it into human-readable form, is not "looking" at the phone as if it was notes in your pocket. Instead, this is the kind of invasive private search that has (until now) never been admissible without either a warrant, or permission/invitation.
posted by -harlequin- at 8:23 PM on January 5, 2011 [3 favorites]


The 4th protects against unreasonable search. If the more extreme possibilities that this ruling deems legal are not "unreasonable", I don't understand what is.
For some people, there could not possibly be any kind of search that is more invasive or thorough!

We don't need the 4th amendment to protect against an officer taking a knife and gutting me like a fish merely to check I haven't swallowed any contraband. That's not what "unreasonable" means here - other parts of the law protect from a fish-knife gullet search. The 4th is for protection against things like highly detailed and invasive fishing expeditions with insufficient justification. And there are situations where searching a phone for things unrelated to the arrest, could lead to a clear violation of the principle.

Precedent suggests that it might be a logical decision, but what it actually legalizes is unreasonable.
posted by -harlequin- at 8:36 PM on January 5, 2011


Of course you don't have to reveal your password to the cops. Why are you even talking to them? Keep you mouth shut, damn it!

"Sir, if you don't cooperate, I'm going to have to take you to jail."
posted by LordSludge at 8:57 PM on January 5, 2011


So it was a 5-2 decision? Jesus, it wasn't even close?
posted by mediareport at 9:03 PM on January 5, 2011


Note to self: Do not get smartphone.
posted by stoneweaver at 9:28 PM on January 5, 2011


The cell companies would already hand over your texts and voicemails

Don't they need a warrant for that?

cars are special

IANAL but isn't this concerning the expectation of privacy in say a car vs. a house. A car is a far more public space etc.
posted by IvoShandor at 9:33 PM on January 5, 2011


A (hopefully reader-friendly) rundown of some cases I think the court gave short-shrift in considering (note: IAAL), and why they may lead to a reversal by SCOTUS:

The justification for a search incident to arrest arises from two exigent circumstances: a threat to officer safety (like accessing a weapon) or destruction or concealment of evidence. Chimel v. California, 395 U.S. 763 (1969). So, in the words of SCOTUS,

"When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule." Chimel, 395 U.S. at 762-63 (emphasis added). (Plain language version: the police get to search you in case you have a weapon or evidence).

(The rule is usually summed up like this: police may conduct a search incident to (i.e., usually contemporaneous with, although that's not always the case with objects seized from the arrestee's person, as the California court discusses in Diaz) arrest of the arrestee's person and the area within his or her immediate control.)

SCOTUS extended this rule to searches of vehicles incident to arrest (usually traffic stop cases) and, after its decision in New York v. Belton, 453 U.S. 454 (1981), courts across the country to give police carte blanche authority to search the entire car incident to the arrest of one of its occupants.

Recently, however, SCOTUS dialed this interpretation back in Arizona v. Gant, ___ U.S. ___, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). In Gant, SCOTUS held that Belton didn't establish a carte blanche rule and took searches incident to arrest back to their underlying, justifying roots; a vehicle search (or search incident to arrest period) of an area beyond the occupants immediate control still must be justified by a threat to officer safety or concealment or destruction of evidence. Gant, 129 S. Ct. at 1718-719. (Therefore, no more searches of car area's beyond the occupant's immediate control -- think passenger area of the car if the driver is arrested -- unless "the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." Gant, 129 S. Ct. at 1719. Think about it; it's ridiculous to assume there's a possibility the arrestee could grab a gun or evidence if they're cuffed and out of reaching distance).

So, in true lawyer fashion, that finally brings us to the point: the California court in Diaz basically shrugs off the two underlying rationales justifying searches incident to arrest and adopts, guess what, a carte blanche rule of "if it's on your person when you're arrested, police can search it as much as they want." But SCOTUS (at least its 2009 members) signaled an (admittedly narrow, 5-4 majority) desire to reject carte blanche rules and bring searches incident to arrest back to their underlying justifications in Chimel. It's perfectly fine to SEIZE the phone if it's on your person during your arrest, per the emphasized Chimel language above, but searching through its contents? SCOTUS emphasized in Chimel that "[t]he scope of [a] search must be `strictly tied to and justified by' the circumstances which rendered its initiation permissible." Unless you have a dead-man's switch rigged to delete the contents daily unless you input a password, where's the threat to officer safety or destruction of evidence? Patting you down incident to arrest, sure, go ahead. Taking your phone, sure, officer. Searching its contents? That's a search beyond the scope of the rationales allowing the search in the first place. I think ryanrs has it right above: seize the phone, apply for a warrant, show the phone's contents actually have some damn connection to a crime, and get the warrant. The Fourth Amendment frowns on free-for-all fishing expeditions.
posted by onebadparadigm at 9:59 PM on January 5, 2011 [6 favorites]


And for a fairly easy-to-read description of facts and law of the Chimel/Belton/Gant trilogy (plus google scholar links to the entire cases), there's the Fourth Amendment section of this Washington state opinion: State v. Valdez.
posted by onebadparadigm at 10:08 PM on January 5, 2011


Buy a Nokia N900, you can install TrueCrypt on it, suck on that California.
posted by gallagho at 12:03 AM on January 6, 2011


Obey the law. Don't get arrested.
posted by Vibrissae at 12:04 AM on January 6, 2011


And carry around a magic rock to prevent tiger attacks.
posted by ryanrs at 12:16 AM on January 6, 2011 [1 favorite]


Obey the law. Don't get arrested.

Right. Because no law abiding citizens ever get arrested .
posted by IvoShandor at 12:52 AM on January 6, 2011


I too have trouble getting my outrage on over this. If arrested, it seems reasonable that the police can look through your text messages on your phone.

Flunkie : If it's reasonable, then they shouldn't have too much trouble finding a judge who will sign a search warrant for it.

This is very nearly verbatim the comment I was going to make, so I'll simply quote Flunkie and leave it at that.
posted by quin at 8:28 AM on January 6, 2011 [1 favorite]


Vibrissae: “Obey the law. Don't get arrested.”

IvoShandor has a few good links up above about this, but I just want to underscore the point that these are two completely different things. Innocent people get arrested. When I say that, I'm not saying "cops are stupid," or even "the police force is a corrupt institution." This is how the system is supposed to work. The police are not supposed to ascertain guilt. That is not their job. Their job is to arrest people when there's a reasonable possibility that they've done something. People who have never been arrested should know that sometimes it's simply not possible for an innocent person to avoid being arrested.

This isn't just something that happens in movies, either. It's not just a "oh, he looked EXACTLY like the killer, and was in the wrong place at the wrong time, so..." kind of thing. I've been arrested. I wasn't strictly innocent, I guess; I missed a few court dates for traffic tickets. (I was going 5mph over the limit in a construction zone, specifically.) I was arrested multiple times for that ticket, in fact, because I kept forgetting to go to court and deal with it. I'm not a terrible person, I'm not a big scary criminal. I'm just a guy with bad ADD who was going through a divorce.

Maybe I'm not the best example, but you can use me as an example if you want. Should the police have been allowed to rifle through my belongings when I was arrested? Should they have been allowed to look through my cell phone? Should they have been allowed to look through my car? In fact, don't take me as an example; a better one: I know a person who was arrested once because he'd missed a court date that wasn't even his – the court mistakenly put him down for it because someone with the same name had a traffic violation. When you're thinking of violating these rights, you should think of the most innocent case, because that's where it's going to do the most damage, and be most an unnecessary violation.

And this notion that only lawbreakers get arrested is a cruel, crude, and vicious lie that has got to stop. It's simply not true. Cops will tell you this themselves; they arrest people if there's reason to believe that they've committed a crime. And it happens, much more often than people realize, that arrestees haven't committed any crime at all.

"Innocent until proven guilty" is supposed to mean something in our society. We should try to remember it.
posted by koeselitz at 10:53 AM on January 6, 2011 [2 favorites]


How does this relate to cops being allowed to go through someone's phone if they've been hurt in an accident and the cops are looking for emergency contact info?
posted by LobsterMitten at 11:18 AM on January 6, 2011


mullingitover wrote: "If only there was some kind of software that you could use to 'lock' your phone in such a way that only the person who knew the password could open it."

If only the vast majority of police departments didn't have the tools necessary to forensically examine your cell phone without knowing a password.
posted by wierdo at 11:24 AM on January 6, 2011


ryanrs wrote: "Cars are special. I wouldn't extrapolate vehicular search and seizure rules to other situations."

Let's keep in mind that some states apply more stringent protections against searches than required by federal law. In at least one state I'm familiar with, an officer performing an inventory search of a vehicle incident to arrest of the driver cannot open any locked containers without a warrant. So if I were in that state and placed my phone into the locked glove box, the officer could not search that area without a warrant or other grounds for an immediate search.

They could use a dog to sniff the outside of the glove box for drugs/explosives/whatever, though. So long as they didn't detain me for longer than the normal period of time a traffic stop takes.
posted by wierdo at 11:36 AM on January 6, 2011


Seems like a reasonable expansion of police powers; they have their hands tied as it is.
posted by quantumhowl at 2:34 PM on January 8, 2011


An update to this: the US Supreme Court is actually hearing a similar case now. At issue is whether police can search a home without a warrant if they have a suspicion that a crime has been committed and evidence is being destroyed.
posted by koeselitz at 2:12 PM on January 13, 2011


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