California to allow warrant-less search of mobile phones

[AGDee]

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

[knight_shadow]

Originally Posted by AGDee

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.

[AGDee]

Originally Posted by knight_shadow

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.

[MysticCat]

Originally Posted by Alumiyum

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?

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

[AlphaFrog]

Originally Posted by KSig RC

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.

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

[Alumiyum]

Originally Posted by MysticCat

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

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.)

[MysticCat]

Originally Posted by Alumiyum

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.

[Ch2tf]

Originally Posted by AGDee

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

My phone gets wiped after 10 incorrect attempts.

[Ch2tf]

Originally Posted by MysticCat

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.

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

[DaemonSeid]

Originally Posted by Ch2tf

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.

[MysticCat]

Originally Posted by Ch2tf

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

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).

[Alumiyum]

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

[MysticCat]

Originally Posted by Alumiyum

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.

[33girl]

Originally Posted by AGDee

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

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.

[Lafayette79]

Originally Posted by AGDee

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

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.