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Article: Should Cell Phone Searches Without A Warrant Be Legal?
Absolutely not! Police should have to go through the same procedures they follow when searching someone's private property. Even though they wouldn't have a clue on how to get inside my Droid X , its the principal of the matter.
Now that looks a lot better Del..
Following on rdills´s
^^^^Hey rdill, Really sorry bud. An inexcusable oversight !
...it´s actually Mark Stone´s fault. He´s all over the place... hear that Mark ? I blame you !
No prob my friend! HAHA! I love the Stacks!
You can't learn anything if you're talking!
Lol!! I love being the troublemaker!
Originally Posted by delfim
i read a detailed article about this before. the u.s. govmt can actually search your cell phone when you're coming off of an international flight without your permission since technically you're not cleared for entrance into the u.s. its extremely shadey and they exercised this right with an individual with wikileaks (controversial figure or not) i still believe its unlawful.
its evident that no matter how much access the govmt has to our life, they want more, and it should be a definite push to enable passwords on our phone and encryption as well.
then again, i have nothing to hide but i still dont want anyone access to my information or that of my friends.
just my .02 cents!
If the police have enough grounds to arrest a person for a criminal offence then searching a wallet, address book or cell phone in their possession is a natural extension of search subsequent to arrest for evidence of the offence being investigated. If the cell phone is locked then a warrant to search should be obtained. That being said, if someone is being arrested for something generic such as assault, theft under etc, there is no real reason that the cellphone should be searched as there is no reasonable grounds to believe evidence of this offence would be located on the phone. A search under these circumstances would be a fishing expedition.
If the offence is drug related it would be more reasonable to expect that evidence of the offence(s) would be found there in text format as criminals are generally ahead of the police in their use of technology to further their "business" endeavours.
Anything the common person has on their phone is meaningless to the police or the state. If your not doing anything then who cares....your not likely to ever be in a situation where the police would want to look at your phone.
The logic behind the court's ruling regarding searching a smartphone without a warrant has less to do with searching phones, and more with the government's ability to execute a warrantless search incident to a lawful arrest. This exception applies to the defendent's person (applicable here) and the area immediately around him/her in which the person may gain possession of a weapon, attempt to escape, or hide evidence.
The court's view, understandably, is that when a person is lawfully arrested (seized) there is no warrant needed for the search, and that in addition to seizing the person's property, the police (government) can search them. This extends to not only seizing the phone, but searching it. In that aspect, I don't think the court is making a mistake here. Apply the same logic to a pack of cigarettes; if I arrest a suspect for selling crack cocaine, I don't need a warrant to look inside the pack of cigarettes in his pocket, and if I find crack cocaine in the pack, I include it in the arrest without needing a warrant. Similar logic applies to searching a phone (as opposed to simply seizing it) without a warrant.
Think of a note in my suspect's pocket that says "Hi. I woud like to buy drugs from you. Call me at 867-5309." Certainly that would be admissable if I found it during a post-arrest search of his pockets. Is a cell phone text message really that different?
Regarding littleacorn's comment about warrantless searches upon reentering the United States, this is limited to foreign nationals. Reentry is not "cleared" for a US citizen travelling on a US passport. It's not like they can refuse to let you reenter the country, and you SHOULD challenge any demands to search your electronics in this situation.
Regarding SGZrazberry's comment about demanding that police get a warrant if your phone is locked and they ask you to lock it, this puts a defendent in an interesting position. If there is something in the phone that could be used to incriminate you, then you have rights under the Fifth Amendment that protect you from unlocking the phone, even under a court order. There was a recent case in New England in which prosecutors requested a warrant compelling a man charged with possession of child porn to decrypt a partion on his hard drive. His attorney argued that doing so violated his Fifth Amendment rights. The magistrate agreed and squashed the warrant request. It was later overturned because the defendent had accessed the encrypted images in front of a federal agent (Customs) which is what led to his arrest, so the Court decided he had already incriminated himself. The overturning of this verdict is irrelevant in SGZrazberrry's example however, in that a smartphone with a PIN/password that has not been determined to contain incriminating evidence is not likely to fall victim to a search warrant if you argue that it could incriminate you.
Also, the OP, who writes, "To me, searching a cell phone without a warrant seems similar to searching a car for evidence without going through the proper procedures, and search and seizure without a warrant is illegal."
This isn't true at all. If I arrest you in a vehicle, I can search the area immediately accessible to you. So, if you're in the car, I can search the interior, including under seats, door storage, glove box, etc. A search of areas not accessible to you (trunk, engine compartment, underside of the car, etc.) would not be admissable.
So, here's where things get scary. If you have a laptop in the car, and I'm arresting you for something to which that laptop may yield evidence (say, I have been investigating you for software piracy and you happen to be driving when I decide to initiate my arrest by way of a traffic stop) does this mean I have the courts "go ahead" to search a laptop in your car? It would seem to me under this decision that I do, and that's what should scare people. I am sympathetic to the court's need to keep up with technology here, but it seems as though we also need to keep up with the rights of people to be protected from the government.
I'd actually like to know how this would have played out if the defendent had been arrested for something that would not likely yield evidence on a cell phone, such as for not paying a fine, or writing bad checks. In the case that went before CA's Supreme Court, the defendent was arrested for selling drugs and police searched for (and found) text messages supporting his sales. While I get that a search in one of the examples I provided (let's say writing bad checks) might be lawful, does that also mean that information found on it would be admissable? I don't see how the goverment (police) could possibly defend that they needed to search a smartphone for evidence in a bad check case. Courts have held in the past (US v. Robinson) that additional justification is not necessary and that warrantless searches of an arrestee's person is presumptively reasonable, but I still question whether such a case would have made even made it as far as this one did.
As I mentioned before, the reasons for the search of a cell phone, or in sebatical's example of a laptop have to be articulated in such a manner as to show that the officer had (in Canada anyway) reasonable grounds to search the item. Sebaticals example, is not clear cut. If the suspect where being investigated for the sale of pirated software or manufacturing fraud credit cards etc, a reasonable person would expect that the laptop would need to be subject to an expert examination which in my view would necessitate a warrant to search. If the suspect was in possession of a cellular telephone at the time of his arrest however, it would be open to at least a cursory examination. Case law in Canada as usual is beginning to lean toward the side of needing a warrant to search all of these items, some for good reason. Its the court's job to make the the final decision as to whether a search was "reasonable", taking into account all the circumstances and the statutory obligations of the police and their role in investigating crime while at the same time considering whether the admission of any evidence gleened from the search would bring the administration of justice into disrepute
In my experience, having drafted many affidavits, it is clear to me that that the burden on police to provide "reasonable grounds" is an onerous one, and one the general public is not aware of on a day to day basis. This unfortunately is due to the public relying on CSI and other "Crime" shows that show the police being able
to get a search warrant by simply calling a Judge etc. This is nowhere near the truth. A quick example is a recent matter where I wished to search a jeep that had been used to intentionally run a man down, killing him. This necessitated the writing of a 50 page Information to obtain a Warrant to Search, as well as a second 45 page General Warrant to search for trace evidence (for the same vehicle! makes sense.....not, but that is what the police deal with). That my friends, is alot of typing just to look in a vehicle. So dont think the police or the "state" can easily waltz into you life without convincing a Judge that it is appropriate at some point along the line. Dont even get me going on the paperwork involved in obtaining a wiretap!!! Anyway....just my two cents worth. Like I said in my earlier post....if you arent doing something, your not likely to deal with any of this baloney! Cheers
By the way....Sebatical had some valid points there....I was not playing down his view in the least!!