posted this on the national board

[LexusLover]

Originally Posted by Spirit13

If a federal supreme court passes a law that requires a copy to get a warrant to search a cell phone record, then its a START.

To a Future Member of Group #1.

[ness]

LL you didn't fix anything because there was no mistake. And yes I know both the court and who the District Judge is, I don't need some random fucktard on the error net babbling aimlessly to figure that out.

FYI District Judge Nicholas Garaufis sighted US v. Jones which was a ruling made in the DC appellate and that case is on the docket of the SCOTUS this fall. The article that the OP posted didn't turn out that way because of a third party stored the data but because the Judges ruled that that and individual has an expectancy of privacy of long term location data.

The US District Court of Mayland had a similar ruling in a case where LE wanted cell phone location data to serve an arrest warrant. Magistrate Judge Susan Gauvey dismissed the lower standards of the SCA and required a search warrant for cellphone location data because in her view long term and real time location data was expected to be private and was a 4th amendment issue.

About a year ago the 3rd circuit had a similar ruling in a case where LE wanted cell phone location data but Magistrate Lisa Pupo Lenihan dismissed the lower standards of the SCA and required a search warrant.

This thread is so messed up, it's apples to oranges to pears ohh my. Spirit is going on about the Coppers searching his phone without being arrested. Yes your right don't give an officer permission to search your phone. Yes LL is right an officer can inspect the phone to see if it is really a phone and not a weapon. But that inspection can not include gathering data from the phone to make a case against you, that information would be inadmissible. Things change pretty dramatically if you are arrested but it is not clear if LE needs a search warrant to search a cell phone, it depends on the state. In Ohio, LE will bag n tag the phone, process you, put you in a cell and then get a warrant to process your phone. In California no warrant is required. There are only a few states that have hashed out this question to their State Supreme court level.

[LexusLover]

Originally Posted by ness

LL you didn't fix anything because there was no mistake. And yes I know both the court and who the District Judge is, I don't need some random fucktard on the error net babbling aimlessly to figure that out.

Right back at you. Your dissertation of lower court opinions scattered about the country fails to address the fundamental issue:

#1:We are in Texas, which means Texas state courts and under the umbrella of the Fifth Circuit. #2: This "topic" has been hashed and rehashed now 3 times.....by the original OP. And you, buried after your lame attempt at insults, made the same points I made in all 3 threads:

You wrote:"Things change pretty dramatically if you are arrested but it is not clear if LE needs a search warrant to search a cell phone, it depends on the state."

Well, this is Texas. Not New York. Not Ohio. Not California.

What I did not do, is what the Fifth circuit did just this year, when confirming its 2007 opinion and conclusion on the topic, and that is cite the other Federal appellate circuits around the country which agree that the data can be taken.

#2. The original OP's headline and advice is wrong. Wrong on the law; wrong on common sense. His "headline" and "advice" has nothing to do with a Federal statute implemented by a Federal agent looking for a search warrant to observe activity over months of phone records.

I will go out on a limb and predict that the U.S. Supreme Court will not exempt cell phones and other mobile communication devices from the "exigent circumstance" exception to the search warrant requirements of the 4th amend. That IS the OP's scenario.....and he even provides the justification.

Now if you want to join him in his erroneous legal advising, I hope all who follow your lead (and his) have plenty of discretionary funds to hire lawyers and pay bail bonds, not to mention the expenses for an appeal, to "get in the books." Principle = Principal.

The distinction between a real lawyer and a cyber lawyer is that the real lawyer must deal in what IS when giving advice to a client, and the cyber lawyer can post what he or she WISHES it WERE and what OUGHT to BE. And the real lawyer has consequences, professionally and financially, if his advice is wrong.....and the data can be taken!

The problem lies on such threads is that there are some on here that latch onto what "ought to be" and begin to believe that is "what is" .... and then there are some WK's that post to impress, so they start name calling, like "random hooktard"!

I mean really ... you are taking "the back" of someone who wrote this and actually posted it for ....... eternity:

"If a federal supreme court passes a law that requires a copy to get a warrant to search a cell phone record, then its a START."

And you really do know "both the court and who the District Judge is,..."? You really do know "District Judge Nicholas Garaufis"? Or was that just "name dropping" to impress?

[ness]

God damn LL you are being totally obtuse. My initial post was to show how wacky and off base Spirit was and as is typical you assume all kinds of dumb ass shit. I can't even begin to argue with Spirit cause he is so out there. That is why I quoted his drivel about you can just horde your phone and not give it to the coppers and then later you can delete the data but then he links a story about LE/prosecutors needing a warrant for cell phone tower location data from the provider, because of the nature of the location data. How obviously completely totally unrelated can one get? But I can't really talk, debate or argue with you cause you insist on changing the subject Ad nauseum, and making off base assumptions.

What I did not do, is what the Fifth circuit did just this year, when confirming its 2007 opinion and conclusion on the topic, and that is cite the other Federal appellate circuits around the country which agree that the data can be taken.

Why don't you specify what your talking about? What data? The data that the cellphone service provider has stored which is covered by the Stored Communications Act? I've never contested that. What I have pointed out is several Judges have opined that the SCA does not cover location data and is requiring a search warrant in those cases.

You haven't shown a single thing specific to the 5th circuit that has to do with long term location data. The reason this is key is the SCA doesn't cover this type of data cause Congress hasn't updated since it was passed in what '85. These rulings are happening because of Congresses failure to update the SCA. There is some momentum in Congress to revisit the SCA which would end these types of rulings, but I'm not going to hold my breath. And it is not the first time that someone in Congress has talked about doing this.

BTW if you bothered to look up US v. Jones you would have realized it is a case about long term, 24/7 warrant less GPS surveillance and not cell phone data. So obviously the Supremes are not going to touch the issue of cellphone data at all. Just another off base assumption you've made. Really if your going to talk about something at least know what the subject is LL.

Now to the physical phone and what the procedures are if you are arrested as to searching the phone. Ok fine we are in Texas, but really when did I say otherwise? Ohh wait I didn't. What I said is this question varies from State to State which is in factual statement. The reason I mentioned Ohio and California is because both have returned different State Supreme Court opinions of this very question this year. Fine we are in Texas so tell us LL has Texas had a similar case make it to the Texas Supreme Court? What are the current procedures LE and prosecutors are using? Have the current procedures been challenged and gone through the appeals process? Thanks in advance for staying on subject and providing relevant information.

As a side note I wouldn't be an ass to you if you would stop trying to speak for me and assuming you know what I think or believe. I'm not giving anybody legal advice what so ever. I am absolutely at a lost of what you specifically think that I've said that is wrong? Can you please in plain English specifically tell me what you think I've said that is in error? I shure the hell am not supporting anything Spirit is saying, he has obviously been batshit crazy in this thread.

[LexusLover]

Originally Posted by ness

But I can't really talk, debate or argue with you cause you insist on changing the subject Ad nauseum,


Why don't you specify what your talking about? What data?


Fine we are in Texas so tell us LL has Texas had a similar case make it to the Texas Supreme Court?

Quote: From "Spirit" ...
but it bears reposting

Phone data offlimits without a warranrt

Cops just cannot grab the phone from you and look at the data. They have to have a warrant to collect it and access it.

If you willingly give to them, then no warrant needed.
So do not hand it over when they ask.

And if they ask and you refuse.. WIPE the data as soon as you can.
End of Quote

Quote from LL:
Originally Posted by Spirit13
but it bears reposting

Phone data offlimits without a warranrt

Cops just cannot grab the phone from you and look at the data. They have to have a warrant to collect it and access it.

If you willingly give to them, then no warrant needed.
So do not hand it over when they ask.

And if they ask and you refuse.. WIPE the data as soon as you can.

Really?

United States vs. Finley (5th circuit 2007)
"here no warrant was required since the search was conducted pursuant to a valid custodial arrest, see Robinson, 414 U.S. at 235. Special Agent Cook was therefore permitted to search Finley’s cell phone pursuant to his arrest.”

End of Quote from LL.

Now, ness, if you want to go pretend you know so much about the Federal statutes, the judges ruling on them, and the various "state courts" that have applied the Federal statutes to either try to impress others about what you "know" or to attempt to discredit the posts I have made in this thread, then start your own thread, or stay on topic, which is the "premise" by the OP that:

The opinion of the EDNY prohibits LE from "grabbing" your phone and looking at the data in it .... AND more importantly to those who actually believe that because they admire the OP's intellectual superiority they can "refuse" to give LE their phones and "wipe the data as soon as" they "can" ... [which might be months, if not years after their criminal case is completed, for not only the underlying offense for which they were arrested, but resisting a search and more than likely resisting arrest, if not assault on a public servant.]

Frankly, I do not want to "talk, debate or argue with" anyone who believes that the Texas Supreme Court will be deciding a case in Texas courts involving the validity of a warrantless search of someone's cell phone for data contained in their cell phone that was confiscated by a Texas peace officer or peace officers.

I am beginning to think that you and the OP attended the same law school.

The reason I quoted and cited the 2 Texas appellate court opinions (one from the Corpus COA and the other from Houston COA) is that it explains the "process" that will be used to obtain the data, have it analyzed, and have it used to convict someone. And more importantly it demonstrates, at least to me, that the original OP knows nothing about which he writes, and has serious comprehension deficiencies.

ness, you are attempting to deflect the attention from the topic of the OP. Is that so you can discuss what you want to talk about? You brought up "New York, California, and Ohio" .. now you bring up the "Jones" case.

What does that have to do with an HPD officer plucking a person's cell phone from their pocket (or holster off their belt), turning it on, looking at the phone calls that were made in the past 24 hours, putting in an evidence bag (or one used for the purpose), and having the cell "guru" at the PD or some assisting agency "inspect" the phone and get the phone records from the provider?

I'll save you same thought time: Nada.

Like I asked, and you didn't answer:

"And you really do know "both the court and who the District Judge is,..."? You really do know "District Judge Nicholas Garaufis"? Or was that just "name dropping" to impress?"

[Capt. Lincoln F. Stern]

Originally Posted by ness

God damn LL you are being totally obtuse. My initial post was to show how wacky and off base Spirit was and as is typical you assume all kinds of dumb ass shit. I can't even begin to argue with Spirit cause he is so out there. That is why I quoted his drivel about you can just horde your phone and not give it to the coppers and then later you can delete the data but then he links a story about LE/prosecutors needing a warrant for cell phone tower location data from the provider, because of the nature of the location data. How obviously completely totally unrelated can one get? But I can't really talk, debate or argue with you cause you insist on changing the subject Ad nauseum, and making off base assumptions.



Why don't you specify what your talking about? What data? The data that the cellphone service provider has stored which is covered by the Stored Communications Act? I've never contested that. What I have pointed out is several Judges have opined that the SCA does not cover location data and is requiring a search warrant in those cases.

You haven't shown a single thing specific to the 5th circuit that has to do with long term location data. The reason this is key is the SCA doesn't cover this type of data cause Congress hasn't updated since it was passed in what '85. These rulings are happening because of Congresses failure to update the SCA. There is some momentum in Congress to revisit the SCA which would end these types of rulings, but I'm not going to hold my breath. And it is not the first time that someone in Congress has talked about doing this.

BTW if you bothered to look up US v. Jones you would have realized it is a case about long term, 24/7 warrant less GPS surveillance and not cell phone data. So obviously the Supremes are not going to touch the issue of cellphone data at all. Just another off base assumption you've made. Really if your going to talk about something at least know what the subject is LL.

Now to the physical phone and what the procedures are if you are arrested as to searching the phone. Ok fine we are in Texas, but really when did I say otherwise? Ohh wait I didn't. What I said is this question varies from State to State which is in factual statement. The reason I mentioned Ohio and California is because both have returned different State Supreme Court opinions of this very question this year. Fine we are in Texas so tell us LL has Texas had a similar case make it to the Texas Supreme Court? What are the current procedures LE and prosecutors are using? Have the current procedures been challenged and gone through the appeals process? Thanks in advance for staying on subject and providing relevant information.

As a side note I wouldn't be an ass to you if you would stop trying to speak for me and assuming you know what I think or believe. I'm not giving anybody legal advice what so ever. I am absolutely at a lost of what you specifically think that I've said that is wrong? Can you please in plain English specifically tell me what you think I've said that is in error? I shure the hell am not supporting anything Spirit is saying, he has obviously been batshit crazy in this thread.

here is the ORGINAL thread

but it bears reposting

Phone data offlimits without a warranrt

Cops just cannot grab the phone from you and look at the data. They have to have a warrant to collect it and access it.

If you willingly give to them, then no warrant needed.
So do not hand it over when they ask.

And if they ask and you refuse.. WIPE the data as soon as you can.



Notice it does not SAY ANY FRIGGING STATE in my post, it only referred to a link that says a Supreme Court in NY had a nice ruling on this issue.

Like Ness pointed out.. a case in Texas has not made it to the Texas Supreme court yet or has not been publicized.

The law will vary state to state but as more people (you know the ones who VOTE people INTO office) want more privacy in their lives, the better chance this will come about.

Something Ness also pointed out... it takes a warrant to get the SERVER data... well gee, if a cop wants to access your phone, its locked and entering the wrong code X times wipes the phone, (not the server) then you could hand it to him in the locked state and tell him I will not unlock it.

Yes you might get a ride downtown but the cops will then be faced with using a hacking tool which can bring some legal issues up like "fishing for evidence" that most judges probably won't sign off on and there is no guarantee they won't trigger the phone wipe that way.

On the other hand you could try to unlock it but claim the cop made you nervous and you wiped it by accident.

Either way lets say the cops end up with a wiped phone. They cannot restore it with out your information so now they want to retrieve it off the server... Oh WAIT wasn't this covered in a previous post? " The data that the cellphone service provider has stored which is covered by the Stored Communications Act? I've never contested that. What I have pointed out is several Judges have opined that the SCA does not cover location data and is requiring a search warrant in those cases."

The original point was that this sort of privacy law is making progress.. Will it make it to Texas or other states? who knows. The legal gain for being able to grab your phone while you are pulled over and just search it has to be weighed in against the 4th Amendment which is a US Constitutional RIGHT. When a state law violates a FEDERAL right, there is a solid chance the STATE will lose in court trying to defend its "right" to violate yours.

[LexusLover]

Originally Posted by Spirit13

here is the ORGINAL thread

but it bears reposting

Phone data offlimits without a warranrt

Cops just cannot grab the phone from you and look at the data. They have to have a warrant to collect it and access it.

If you willingly give to them, then no warrant needed.
So do not hand it over when they ask.

And if they ask and you refuse.. WIPE the data as soon as you can.


The original point was that this sort of privacy law is making progress..