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  1. #1
    Administrator Police Abuse's Avatar
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    No warrant needed to search cell phone in California

    No warrant needed to search cell phone

    The next time you're in California, you might not want to bring your cell phone with you. The California Supreme Court ruled Monday that police can search the cell phone of a person who's been arrested -- including text messages -- without obtaining a warrant, and use that data as evidence.

    The ruling opens up disturbing possibilities, such as broad, warrantless searches of e-mails, documents and contacts on smart phones, tablet computers, and perhaps even laptop computers, according to legal expert Mark Rasch.

    The ruling handed down by California's top court involves the 2007 arrest of Gregory Diaz, who purchased drugs from a police informant. Investigators later looked through Diaz's phone and found text messages that implicated him in a drug deal. Diaz appealed his conviction, saying the evidence was gathered in violation of the Fourth Amendment, which prohibits unreasonable searches and seizures. The court disagreed, comparing Diaz cell phone to personal effects like clothing, which can be searched by arresting officers.

    "The cell phone was an item (of personal property) on (Diaz's) person at the time of his arrest and during the administrative processing at the police station," the justices wrote. "Because the cell phone was immediately associated with defendant's person, (police were) entitled to inspect its contents without a warrant."

    In fact, the ruling goes further, saying essentially that the Diaz case didn't involve an exception -- such as a need to search the phone to stop a "crime in progress." In other words, this case was not an exception, but rather the rule.

    Rasch, former head of the Justice Department's computer crime unit, pulled no punches in his reaction to the ruling.

    "This ruling isn't just wrong, it's dangerous," said Rasch, now director of cybersecurity and privacy at computer security firm CSC in Virginia. "It's remarkable, because it simply misunderstands the nature of these devices."

    The door is open for police to search the entire contents of iPhones or other smart phones that people routinely carry, he said.

    "In fact, I would be shocked if police weren't getting instructions right now to do just that," he said.

    By applying the "personal property on the defendant's person" standard, Rasch said, the ruling could logically extend to tablets or even laptop computers, he said.

    It also flies in the face of established law, which prohibits the warrantless search of briefcases by police, other than a quick search for weapons, Rasch said.

    In its ruling, the majority likened cell phone inspection to police inspection of a cigarette pack taken from a suspect, which was ruled a legal search in a prior case. A second ruling was cited involving the search of clothing removed from a suspect.

    Rasch said the analogies don't hold, however, as modern phones that can store years' worth of personal information are a far cry from drugs hidden in a cigarette case or clothes pockets.

    "There is a process for looking at data inside devices," he said. "It's called a warrant."

    Grants police 'carte blanche'
    The California ruling was not unanimous. Dissenting Justice Kathryn Werdegar raised similar concerns in her opinion.

    "The majority's holding ... (grants) police carte blanche, with no showing of exigency, to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee's person," she wrote. "The majority thus sanctions a highly intrusive and unjustified type of search, one meeting neither the warrant requirement nor the reasonableness requirement of the Fourth Amendment to the United States Constitution."

    Jonathan Turley, a Constitutional law expert at George Washington University, took to his blog to raise his concerns about the ruling.

    "The Court has left the Fourth Amendment in tatters and this ruling is the natural extension of that trend," he wrote. "While the Framers wanted to require warrants for searches and seizures, the Court now allows the vast majority of searches and seizures to occur without warrants. As a result, the California Supreme Court would allow police to open cell phone files — the modern equivalent of letter and personal messages."

    Diaz's lawyer, Lyn A. Woodward, has said she plans to appeal the decision to the U.S. Supreme Court. In the meantime, warrantless searches of cell phones are essentially the law of the land in California.

    Password-protection of smart phones might be a useful tool to ward off a warrantless search -- it's not clear that an arrested suspect could be compelled to divulge his or her password to police -- but that legal argument has not yet been made.
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  2. #2
    Resident Esperahol's Avatar
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    And this is why one password locks everything because you never know when you're be arrested on some baseless accusation and have some idgit pawing through all your information.

  3. #3
    Newb LiquidatorBrunt's Avatar
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    Yes, you can't be too safe with protecting your personal information these days. It can be a pain in the but sometimes but I have everything password protected. All my cookies are deleted each time my browser shuts down and no history is kept. My files on my hard drive are encrypted and each log in session is password protected. This wouldn't stop anyone if they really took the time to get into my personal computer and had the know how but it will stop an officer on the street from digging through my netbook.

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    Newb dmeagher's Avatar
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    I thought the NSA already had access to all of this while you were doing it, no?

    Also can't they just ask you for the password?

  5. #5
    Newb LiquidatorBrunt's Avatar
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    Quote Originally Posted by dmeagher View Post
    I thought the NSA already had access to all of this while you were doing it, no?

    Also can't they just ask you for the password?
    They can ask all they want. I might even give them a few, "donuteater" "baconwhithahat1" "allcopsarebastards"

  6. #6
    Newb streakanime's Avatar
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    Quote Originally Posted by LiquidatorBrunt View Post
    They can ask all they want. I might even give them a few, "donuteater" "baconwhithahat1" "allcopsarebastards"
    Baha.... That is hilarious. That would be kind of like you having a lock box on you but not having the key. They technically could go through the lock box if you had the key. But, the key is not property on you while you were arrested, so there is nothing say you have to give them the key. I would think that that same logic can be applied to passwords and locks. If they really think they need into your computer/phone that badly... They could just use their tech support and find their own way in. That's what those guys are paid to do anyway.

  7. #7
    Resident Esperahol's Avatar
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    Quote Originally Posted by dmeagher View Post
    I thought the NSA already had access to all of this while you were doing it, no?

    Also can't they just ask you for the password?
    The NSA like the CIA is a far scarier entity in legend then in realitity. Most of their records are gathered from the various paper/digital trails people are so careless about. They honestly aren't l33t hackers with Matrix-like powers.

    As for passwords? "Sorry officer, but you're gonna need a warrent for that."

  8. #8
    Newb artifactsofmars's Avatar
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    This is outrageous! The seems thing nothing that they won't poke their noses into when it comes to our business.
    The next thing you know, they will be stopping people on the streets, wanting to see what they have in their phones, and laptops and other devices. The people have to stand united against this kind of abuse that is all there is to it.

  9. #9
    Newb Jatelo2's Avatar
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    The Idea is not as bad as it seems. If we want law to take its course then were are not supposed to delayed. Time taken to go and get a warrant when a criminal's cell phone has evidence has been removed by this ruling thus speeding up the evidence collection process. Some cases were just thrown away due to lack of evidence since the accused had enough time (as the police go to warrant) simply deleted every incriminating details from their phones or computers. So let's view this things from both sides and with an open mind.

  10. #10
    Newb Zeon's Avatar
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    Wow, that's really unfair. They can't just take your phone off you and start going through it without your consent. I recommend everyone living in California to put a screen lock on their phone to prevent police from accessing your private data.

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