View Full Version : Court: No warrant needed to search cell phone
(Entire article here (http://redtape.msnbc.com/2011/01/court-cops-can-search-cell-phone-without-warrant.html))
Posted: Tuesday, January 4 2011 at 05:45 pm CT by Bob Sullivan
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. :eek:
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." :confused:
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.
In its ruling (http://www.courtinfo.ca.gov/opinions/documents/S166600.PDF), 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.
"...involves the 2007 arrest of Gregory Diaz, who purchased drugs from a police informant."
Maybe the cell phone contained evidence of the crime that led to the arrest...the California judiciary has the reputation of being fairly liberal - that would be pro defendant not necessarily pro police.
Presumably there was time to obtain a warrant...and time to delete the messages.
Is this case the canary in the mine shaft or the black birds in Beebe - time will tell.
When you use a cell phone or any electronic means of communication, there is the expectation of privacy. Or at least there used to be.
If there is evidence of a crime, get a warrant. If text messages are deleted from the phone or SIM, write the warrant and get the messages from the phone provider.
I have no doubt this will end up in The Court.
In this day and age is it realistic to have an expectation of privacy when using a cell phone or is that really just wishful thinking?
It's pretty common knowledge that you can be tracked by using your cell phone.
As always, it's a balancing test - agree that the courts will see more of these cases.
monsterhunter
01-04-2011, 22:43
just had to do a big edit on my own post after reading my depatment's brief on this case law. Bottom line seems to be this: When a person is arrested, a cell phone on their person is subject to a search incident to arrest, much like the contents of their wallet or any other property. Any evidence found may be used in the case.
Laptop computers and the like were not addressed. It will be interesting to see how this progresses.
The main thing behind all of this is a search incident to arrest. I'm more concerned with the California DOJ's ambiguous weapon laws that they don't care to clarify for most local law enforcement agencies. Now that's scary.
Laptop computers and the like were not addressed. It will be interesting to see how this progresses.
I'd use degenerates rather than progresses, as we refer to our disappearing liberties.
We've lost a vast portion of our rights already; before much longer the remaining tattered facade of liberty for the individual will shred completely unless the statist bunko artists who have been running Congress since 2006 are pushed aside.
The progressives want the State to own everything you have-including your guns-and they want "eyes" on you at all times.
This Country as a whole has the worst case of ostrichitis I've seen, and it's nearly too late to reverse the decay of personal freedom.
IMO :)
(Entire article here (http://redtape.msnbc.com/2011/01/court-cops-can-search-cell-phone-without-warrant.html))
Posted: Tuesday, January 4 2011 at 05:45 pm CT by Bob Sullivan
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. :eek:
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." :confused:
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.
In its ruling (http://www.courtinfo.ca.gov/opinions/documents/S166600.PDF), 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.
This is nothing new....... This has been the rule for years........ It was on his person and if it is on the phone it is fair game. Good reason not to have a smart phone.....
dr. mabuse
01-05-2011, 14:47
*
In school, we check only the call/message logs of student phones when confiscated for cause.
Richard :munchin
This is nothing new....... This has been the rule for years........ It was on his person and if it is on the phone it is fair game. Good reason not to have a smart phone.....
Learn something everyday on this site.
Interesting paper (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1084503) from 2008.
Do not forget your GPS (On Board or portable)
Just imagine you have just been arrested and taken in to the station. Your car is towed to a garage. Bubba comes over and tells the guy hay he has a stratus with onboard GPS or hay the guy has a NUVI from Garmin........
The Tech guy walks over and plugs in his laptop and downloads all the info on the GPS. You have been denying that you were at the bank this morning and now your GPS says you were at the banks address.
Is this legal? HELL YES....... OH do not forget that your IPAD setting in the back seat that you surf Kiddy Porn is going to be checked and they will then add some more charges.......
All those gadgets that make your life fun can also do you in......... Plane Jane Phone (prepaid) is your best bet........ Learn to read a map and do not mark on it and keep your car /wallet etc clean with no trash (Receipts, etc) This will keep your girlfriend/wife/cops from getting a leg up on you.............
Our favorite saying is We only get the DUMB ones and it is so true........
Just my 2 cents.....
To add what might be an important wrinkle to the discussion, generally, for evidence obtained under a search incident to an arrest - for such evidence to be considered permissible - the search must be incident to a LAWFUL arrest.
Which leads to other considerations and particularly consideration of the exclusionary principle known as "fruit of the poisonous tree."
Simply stated, bad arrest = poisonous tree - and generally evidence obtained from that unlawful arrest is considered fruit from the poisonous tree and inadmissible.
http://topics.law.cornell.edu/wex/fruit_of_the_poisonous_tree
http://legal-dictionary.thefreedictionary.com/Poisonous+fruit
It may be much simpler (and considerably cheaper) to be a Luddite. ;)
monsterhunter
01-08-2011, 14:25
monsterhunter, how do they handle it in Kellifornia if a person in a car has a locked briefcase with tumbler lock, no keys?
Is it inventoried as a locked briefcase or do they break it open? :munchin
It all depends on the reason for the search/inventory. There are situations where you can open a locked briefcase without the owner's permission and times when you cannot. These laws are complicated and most often are guided by case law from throughout the United States. On a regular inventory search with a vehicle impound behind a suspended or unlicensed driver, opening a locked briefcase in a car may open you up to civil liability and any evidence will probably be excluded. You should have a reasonable suspicion that there may be specific evidence inside the case before opening.
If the driver was arrested for narcotics possession/sales, the courts look much more favorably with you going into the case. It's not really a "fishing" expedition at this time, as you actually have a reasonable suspicion the case may contain additional narcotics.
Case law (which changes like the weather) is leaning toward a locked briefcase being unsearchable without consent. Just because you have consent to search a car does not give you consent to search a locked container. Consent may be withdrawn at any time. If the person is unable to revoke his consent because you placed him in your back seat, your search of the container is no good and violates the individuals rights.
I need a specific situation in order to answer you more competently.