California to allow warrant-less search of mobile phones
 

CNN) -- 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, a Superior Court in Ventura County, California, ruled 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' at the time of arrest."

Two justices (Kathryn Mickle Werdegar and Carlos Moreno) dissented from the majority opinion: "In light of the vast data storage capacity of smartphones and similar devices, the privacy interests that the federal Constitution's Fourth Amendment was intended to protect would be better served by a rule that did not allow police 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."

In a blog post, Ohio attorney Patrick Murphy summarized the California case that led to this ruling:

In 2007 a Ventura County Deputy Sheriff witnessed a drug deal involving a car driven by Gregory Diaz. Diaz and his passenger were immediately arrested, and six Ecstasy pills were seized. At the police station, Diaz's phone was confiscated. Diaz denied knowledge of or involvement in the drug deal.

After Diaz was interviewed by police, Murphy writes, the deputy "looked at the cell phone's text message folder and discovered a message that said '6 4 80' -- which in the deputy's experience meant 'Six pills of Ecstasy for $80.' Minutes later [the deputy] confronted Diaz with the text message, at which time the suspect admitted to participating in the sale of Ecstasy."

But this ruling is not limited to text messages.

The ruling allows police in California to access any data stored on an arrestee's phone: photos, address book, Web browsing history, data stored in apps (including social media apps), voicemail messages, search history, chat logs, and more. Also, depending on the use of location-enabled services or apps that store data on the phone, the police might also be able to infer the arrestee's past whereabouts.

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Isn't a warrant still needed to check a land line? How is this any different besides that fact that your mobile phone is 'personal property'?

I say BOOOOOO on this ruling!

Yeah if that guy were carrying a laptop when he was arrested they would need a warrant to search files, right? So how is the phone any different?

What really bugs me about this one is that they aren't just searching the data of the person arrested - if there are emails, for instance, between him/her and someone else, that third party's email is being invaded, too.

I agree with the point made by the justices who dissented. Phones contain so much information and allowing police to rifle through them doesn't seem in line with the 4th Amendment. I think this could take the idea of losing privacy upon arrest way too far.

Exactly. Not to mention that though I'm sure 99% of cops out there are good at their job and wouldn't do harm to a citizen in their custody, I still don't trust a stranger to go through my personal information which can include passwords to accounts, credit card numbers, etc. as well as personal messages between myself and others (and as just pointed out...that means that person's privacy is being invaded as well). I don't understand why a cell phone should be the exception to the rule.

The parole agents check a parolee's phone if they have him cuffed. But as they have the right to search the parolee and his house/car for no reason in particular I don't think that this has been an issue to them.

/cool story bro.

Put a password on your phone. Problem solved.

I was going to say that, but I wasn't sure if the police have the ability to search your phone as they're arresting you or if they can still do a search while you in a holding cell (for example).

I've seen enough police shows to know that a BlackBerry password won't stop the techs downtown lol

Um, dumbass alert. He should have said it was his cousin's birthday or something (since that actually is feasible as a date). Slow thinking criminals are the worst.

^^^ There's a correlation between the slow thinking and the criminal part.

No, that guy should have refused to interview the police. "6 4 80" could be anything -- it could just as easily been a password, keycode, or birthday as previously mentioned.

The reason why police interviewed him is because the text message itself wasn't evidence of anything. However, the minute that guy spoke up and admitted to it, that's a verbal confession -- solid evidence. Whether or no the text message was obtained legally, that guy's headed to jail. He just waived his 5th in the worst way possible.

In any case, this ruling still bothers me a lot. I hope it goes to the Supreme Court. Until then, I guess it's time for me to lock my phone.

I'm completely Law and Ordering this because the only law I've "studied" is business law, but couldn't his lawyer argue that the illegal search of his phone led to the confession, so it should be thrown out since he would not have incriminated himself otherwise?

This would probably be worse - he'd have to produce a cousin with that birthdate at trial (since the text alone was enough to charge in addition to his proximity, most likely), and since it was in a police interview, he's essentially impeached himself already.

Once he knows he's being charged (which the text essentially does), it may be to his benefit to cooperate and try for a reduced sentence - obviously that totally depends on his past record, the DA, etc.

In general it's better to just not talk at all than to lie to the cops.

Ha...I bet they could break you iPhone code pretty quickly if they really wanted to. Though, I think it locks if you do it wrong to many times. I should probably check on that since I use the password and should know how many times I can screw it up!:rolleyes:

Most phones have apps available that not only lock, but wipe out the data on the phone with too many incorrect attempts.

I don't know if I like that. There have been a few nights where I've been ... impaired .. and typed in the incorrect password too many times.

It's required on corporate blackberries here... no choice in the matter.

Not if the California Supreme Court has held that the search was not illegal.

The suspect is Hispanic - there's a good chance he's got about 250 cousins to go through and find someone with that birthday. ;)

What if the decision is overturned, couldn't he get off on an appeal? (I'm just interested in law and like asking questions. Drives my dad nuts.)

This was the appeal. Despite what was in the blurb DS quoted ("a Superior Court in Ventura County, California"), this was a California Supreme Court decision. No one but the US Supreme Court can overturn them.

I've skimmed the decision (and the dissent), and my sense is that the California Supreme Court followed US Supreme Court precedent appropriately. The dissenters rely on how the SCOTUS decisions relied on by the majority could not have contemplated newer technologies, and this may indeed be one of those instances of the law needing to "catch up" with technology. But in the meantime, SCOTUS precedent is what it is, and it looks to me like the California Supreme Court properly followed it.

My phone gets wiped after 10 incorrect attempts.

MC so how is the cell phone different than say a lap top? (Not being snarky, I'm actually curious).

I was going to ask the same especially considering now that the line is blurring between smartphones and dedicated laptops.

I guess the short answer is that it may not be different.

The principle involved is that a search incident to an arrest does not require a warrant -- that the Fourth Amendment does not prevent police officers from searching a person at the time of arrest in order to ascertain whether the person has weapons or to preserve evidence that otherwise could be destroyed. Such a search is limited to the person being arrested (that's why cell phones come into play, as they are often in pockets or on holsters) or within arm's reach.

I don't know of a case involving laptops as part of a search incident to an arrest, but the same principles could apply, at least until SCOTUS says otherwise (or a state adopts a law requiring a warrant to search laptops).

Do you think they'll take it to the US Supreme Court MC?

No idea, They might try, but the operative word would be try. The Supreme Court decides what cases it will hear. The Court generally gets asked to review over 10,000 cases in a given term (court year). Of those, they hear arguments and issue opinions in about 100, or 1%. Another 50+ cases might be ruled on without a hearing or formal opinion.

Most often (though certainly not always), the Court chooses to hear cases where there is a significant disagreement between circuit courts of appeal (or state supreme courts). I could be wrong, but I don't think that's the case here.

Well, you probably shouldn't be taking your corporate blackberry to the beers of the world club or the titty bar. Take your personal phone.

You also shouldn't have to buy this because you are too much of a cheapo to have a work wardrobe and a party wardrobe. Sorry for the tangent, but that ad has been bugging the crap out of me.

Do you know if the wiping is up to DoD standard, or just deleting the files?

DoD takes some time and pulling the battery should leave a lot of data still there.

Just deleting files means the disk is recoverable.

Ours are whole drive encrypted to begin with which makes recovery pretty difficult in the first place but the product we use meets DoD standards.

Thanks,
I wonder what the situation is with the off the shelf phones that we buy. I've read on another board that there are Apps for phones that do as you said yours does, but without the encryption, which is why I asked you in the first place. I don't see some random Java App being as sophisticated as yours, and so, the phone is vulnerable.

There are a few easier solutions. First, don't put private information on a cell phone. The wipe would do things like prevent someone from automatically receiving your emails because those mail settings would be wiped out. Most often, you're protecting your phone from someone who would steal your phone. The person who steals your phone, most often, just wants the phone, either to use or to sell. Most often, someone who steals your phone doesn't have the forensic skill to get the data off of the hard drive of the phone.

In the case of your phone being searched if you are arrested, don't keep evidence of illegal activity on your phone. Don't use a cell phone to discuss illegal activity. I'll even go one better... don't engage in illegal activity :) Kwame Kilpatrick will tell you the danger of discussing illegal activity via text messages.

One of the things we talk about in the InfoSec world is that laws don't change as fast as technology does but general laws apply generally to new technologies. In that regard, my question would be.. if I am arrested, is my purse searchable? If it is legal to search my address book, paper calendar, etc. that would be in my purse, then why wouldn't it be legal to also search my phone? Likewise, if it is legal to search my car, then anything in my car is fair game, right? Why would a cell phone be exempt?

Because, if you're arrested in your car, that alone is not enough for police to search your office or a file cabinet.

It's somewhat unclear whether old standards regarding probable cause do, and separately should, apply to new technology. That's what this ruling clarifies.

In another thread, ThetaPrincess24 posted an update to the ΔΤΔ mess at Kentucky: http://www.greekchat.com/gcforums/showthread.php?t=117289&page=2, and it has a quote relevant to this thread.

So it looks like Kentucky, as of Nov 30, 2010, had no problem waiting for a warrant.

Right, which is because this was a state decision that occurred in a different state a month after that occurred. Plenty of police officers in CA probably waited as well until a court ruled it was ok.


/point is that's irrelevant.

In our democracy, the Fourth Amendment is never irrelevant.

But if you had your briefcase in your car, would that be fair game?

My point was that the information on your cell phone doesn't "exist" in ways contemplated specifically by the Constitution.

Which is why there was a court case. And a ruling. Both of which, due to location and timing, carry a relevance that your comparison lacks.