Providers, cell phones and the law.

[lawyerinjeans]

I have run across a lot of just plain wrong legal advice/opinion concerning LE's ability to access information on cell phones in arrest situations. So posing the issue as: If a provider (or client for that matter) gets busted and their cell phone is confiscated by LE, can LE access the information on the cell phone for evidence of other crimes, or otherwise use the information against the provider/client in some manner? The answer is NO. While a search incidental to an arrest is legal, such search is for the limited purpose of insuring LE's safety and the preservation of evidence. There was a somewhat recent U.S. Supreme Court case titled Riley v. California. Here is a rough brief of the case and issue.

Issue: Was the trial court's admission of evidence taken from Riley's cell phone found on him during a search incidental to his arrest, a violation of his Fourth Amendment right to be free from unreasonable searches?

Decision: Yes. The Court held that the warrantless search exception following an arrest exists for the purposes of protecting officer safety and preserving evidence, neither of which is at issue in the search of digital data. The digital data cannot be used as a weapon to harm an arresting officer, and police officers have the ability to preserve evidence while awaiting a warrant by disconnecting the phone from the network and placing the phone in a "Faraday bag." The Court characterized cell phones as minicomputers filled with massive amounts of private information, which distinguished them from the traditional items that can be seized from an arrestee's person, such as a wallet. The Court also held that information accessible via the phone but stored using "cloud technology" is not even "on the arrestee's person." Nonetheless, the Court held that some warrantless searches of cell phones might be permitted in an emergency: when the government's interests are so compelling that a search would be reasonable.

The Riley case involved a gang member that was tied to a murder because of the info LE found on his phone. It was a unanimous decision of the U.S. Supreme Court so this very strong law. LE can take your cell phone, but they can't access the info on it without a search warrant. If it is taken during the arresting process, it is not subject to a search of the information on it and must be returned to you along with your personal items at the proper time. This is true even if your phone isn't locked, but, of course, you should keep your phone locked anyway. And, it should go without saying that you should not answer any questions about the phone other than to identify it as your personal phone/computer. If LE starts asking questions about information on the phone, ask if a search warrant was issued (it won't have been). Then inform the officer that your right to privacy has been violated and you'll be speaking to the same lawyer that informed you about Riley v. California.

Hope this clears up any misperceptions about the law.

[ShysterJon]

Originally Posted by lawyerinjeans

If a provider (or client for that matter) gets busted and their cell phone is confiscated by LE, can LE access the information on the cell phone for evidence of other crimes, or otherwise use the information against the provider/client in some manner? The answer is NO.

That statement, on its face, is inaccurate. It would become accurate if you added "without a warrant" before the question mark. Of course, it's normally fairly easy for a cop to get a search warrant.

In a prostitution arrest with either or both parties having a cell phone, and with an intent on the part of LE to search the phone, I think the first occurrence will be the arresting officer asking the owner of the phone whether he or she consents to a search of the phone. I'd recommend this simple response: "No, thank you." Then it's LE's burden to pursue a warrant.

I don't want anyone to get the impression that the Riley case stopped cops from searching cell phones in prostitution busts, because it didn't. The decision just makes it a little harder for cops to gain access to the evidence.

[Mr. GPop]

A "Faraday Bag" is a foil lined bag to prevent it from connecting to the network. This is done mainly because of such features as the "remote wipe" which some phones can do via the OS or via an installed APP.

This is when you need a "Kinky Kleaner" aka someone who if you are arrested, die, etc.. has full access to your hard drives and phone wiping account and proceeds to do so when you contact them with your call from jail or they find out you died to prevent your "other life" to come to light.

The down side to the faraday bag they sometimes do not block a strong signal or they remove and power up the phone back at the station while at the officer's desk and the wipe signal hits it.

I have known this to happen only once to a friend in Chicago. he got picked up for some warrants and his passenger who was released because he was clean was told to call a certain person and "obtain legal counsel" which was their code for "wipe my data, then call the lawyer.

When he got released the arresting cop was not too happy when he looked at the phone and it was clean.

[ShysterJon]

That's a very melodramatic post, GPop. It makes me want to read a Mickey Spillane novel or something.

[lawyerinjeans]

Shyster, your statement that it is "normally fairly easy for a cop to get a search warrant" is wrong on its face. First, cops don't get search warrants, prosecutors do. They have to file a petition with a court establishing, "probable cause, supported by Oath or affirmation...particularly describing the place to be searched, and the persons or things to be seized". (4th Amend). The fact that a cell phone was in the possession of a client or provider during an arrest for prostitution sure as hell isn't going to meet the "probably cause" standard, and exactly how could the prosecutor "particularly describe" the thing to be seized? If the arrest involved other possible felony type criminal activity, the prosecutor may be able to show probably cause and the thing to be seized, but in a simple prostitution sting, there is no reason to believe such specificity could be provided under oath. I was addressing sting-type arrests for prostitution which I presumed was what most readers would be interested in knowing.

Without getting too deep into the weeds, what Riley establishes, is that people have an expectation of privacy in the information on their cell phone. It then follows is that if LE just starts looking through the info on a cell phone without a warrant, there is at least a 1983 cause of action for civil rights violation. So I think my information is correct. Arrests incidental to participation in the hobby does NOT give LE the right to go through your cell phone, and there isn't going to be a warrant issued under the circumstances associated with a misdemeanor prostitution arrest. My post was intended to calm fears about cell phones and the hobby. I think your response was unnecessarily alarmist.

[Unique_Carpenter]

lij:
Are there not on call prosecutors in Jackson, Clay, Johnson and other Kansas City metro counties that cops know to call?
Granted misdemeanors may not get folks excited enough to do that.
Regardless, warrant's are fairly easy and fairly quick to obtain.

Justice Roberts, on a comment in the case being discussed, actually alludes to everyone having cell phones nowadays, including judges, and he directly implies that if done right, warrants can be obtained rather quickly.

To close, this discussion does not stop a cop from looking. It only stops data that may be found from being used in court.
And we are leaving the issue of a cop just holding the phone for a while to interrupt business for another discussion.

[lawyerinjeans]

Carpenter;
Yes there is always a prosecutor on call no matter what jurisdiction, but they are usually at home and available to be called in if needed. In Jackson County alone, there are about 25 assistant P.A.'s. However, the whole search warrant thing just doesn't operate in real life like it does on TV. Think about this. Most stings happen in the evening. So the first thing the cop has to do is convince the Ass't P.A. to leave home and go to his/her office, draft a petition and a couple affidavits, then go to the police station and have the cop sign his affidavit, then go knock on some judge's door and convince the judge to sign the search warrant. I guaren-fucking-tee you that a judge will hand a young Ass't P.A. his head if s/he shows at his/her door wanting a search warrant for phone that was simply taken from a provider or client if there are no other extenuating circumstances, i.e. indicia of other criminal activity. And even if there is indicia of other criminal activity, the search warrant will have to make the connection between the data that's "suspected" to be on the phone, and the possible criminal activity. Neither the judge or the P.A. is going to go through this if they know that the evidence is going to be thrown out by competent counsel. So, I mean, it is just not going to happen. Anyway, after the judge hands the Ass't prosecutor their head, the judge calls the elected prosecutor and gives him/her shit, which means the next day, the Ass't P.A. gets hammered again by the elected prosecutor. This is the sort of things that seriously impedes a young ass't prosecutor's career path and they aren't going to risk their career path to satisfy the curiosity of a cop. After Riley, the simple fact is, cops aren't going to get a search warrant for a cell phone taken incidental to an arrest for prostitution or solicitation. Evidence of one crime is insufficient probable cause to search for evidence of another crime. If Riley stands for anything, its that a cop just can't go looking at data on a cell phone hoping to find more evidence of other illegal activity, and the cop is going to have to convince the P.A. and the judge that that is not what s/he are doing. The only way to do that is to be able to articulate in the sworn affidavit "the thing to be seized in the search" meaning identifying the data on the phone that is related to the illegal activity for which the person was arrested.
Yes, Chief Justice Roberts, who wrote the unanimous opinion, said there are circumstances which justify searching a cell phone, but it is clear he is talking about matters of national security, or other exceptional circumstances. And frankly, if such exigent circumstances exist, the cop doesn't need a search warrant. because the search would not be "unreasonable". The 4th amendment only protects against unreasonable searches.
Finally, as I alluded to in my last post. It is pretty clear that Riley establishes an expectation of privacy in the data on a person's cell phone. A cop just looking at the data to see what is there will be violating not only your constitutional right to privacy, but also your 4th amendment right to be free from unreasonable searches. If a cop makes mention of any info on a cell phone that was taken as part of an arrest, please put them in contact with me. That's easy money my friend. And I love easy money from LEO.

[Buying a *Way to Heaven]

First, it is up to the judge in every individual case whether to admit any particular evidence. Judges are in no way accountable for obeying law or precedent, and case law is always a mess of contradictions anyway. If the judge violates precedent, that could be grounds for appeal, but if you show up in court without counsel the judge knows you don't have the resources for a protracted battle and he's free to do as he pleases.

Second, even if evidence is suppressed, it still can be used against you and others in various ways.

[Jannisary]

lij:

I think you have a point but I'd be careful about making overly broad statements on something that may really come down to the individual particulars of each situation as far as whether the officers and prosecutors will seek and successfully get a search warrant for phones found during a bust.

With the widespread use of texts and mobile email in the sex industry it may not be that hard to link a provider's phone to the crime of solicitation and other related but more serious crimes connected to her activities.

[Unique_Carpenter]

Originally Posted by lawyerinjeans

Carpenter;
Yes there is always a prosecutor on call no matter what jurisdiction, but they are usually at home and available to be called in if needed. In Jackson County alone, there are about 25 assistant P.A.'s. However, the whole search warrant thing just doesn't operate in real life like it does on TV. Think about this. Most stings happen in the evening. So the first thing the cop has to do is convince the Ass't P.A. to leave home and go to his/her office, draft a petition and a couple affidavits, then go to the police station and have the cop sign his affidavit, then go knock on some judge's door and convince the judge to sign the search warrant. I guaren-fucking-tee you that a judge will hand a young Ass't P.A. his head if s/he shows at his/her door wanting a search warrant for phone that was simply taken from a provider or client if there are no other extenuating circumstances, i.e. indicia of other criminal activity. And even if there is indicia of other criminal activity, the search warrant will have to make the connection between the data that's "suspected" to be on the phone, and the possible criminal activity. Neither the judge or the P.A. is going to go through this if they know that the evidence is going to be thrown out by competent counsel. So, I mean, it is just not going to happen. Anyway, after the judge hands the Ass't prosecutor their head, the judge calls the elected prosecutor and gives him/her shit, which means the next day, the Ass't P.A. gets hammered again by the elected prosecutor. This is the sort of things that seriously impedes a young ass't prosecutor's career path and they aren't going to risk their career path to satisfy the curiosity of a cop. After Riley, the simple fact is, cops aren't going to get a search warrant for a cell phone taken incidental to an arrest for prostitution or solicitation. Evidence of one crime is insufficient probable cause to search for evidence of another crime. If Riley stands for anything, its that a cop just can't go looking at data on a cell phone hoping to find more evidence of other illegal activity, and the cop is going to have to convince the P.A. and the judge that that is not what s/he are doing. The only way to do that is to be able to articulate in the sworn affidavit "the thing to be seized in the search" meaning identifying the data on the phone that is related to the illegal activity for which the person was arrested.
Yes, Chief Justice Roberts, who wrote the unanimous opinion, said there are circumstances which justify searching a cell phone, but it is clear he is talking about matters of national security, or other exceptional circumstances. And frankly, if such exigent circumstances exist, the cop doesn't need a search warrant. because the search would not be "unreasonable". The 4th amendment only protects against unreasonable searches.
Finally, as I alluded to in my last post. It is pretty clear that Riley establishes an expectation of privacy in the data on a person's cell phone. A cop just looking at the data to see what is there will be violating not only your constitutional right to privacy, but also your 4th amendment right to be free from unreasonable searches. If a cop makes mention of any info on a cell phone that was taken as part of an arrest, please put them in contact with me. That's easy money my friend. And I love easy money from LEO.

OK, I'll give you that.
But one of the guys I know has his phone light up after hours frequent enough for him to be grumpy. However, not not misdemeanor stuff.
Still, a street cop does whatever he wants, and looking through a cell phone or laptop still appears to happen, or even holding the equipment for a couple hours, and I've heard direct stories. One from after the case in discussion got posted. But for misdemeanors, folks almost always want to deal with the tickets quietly.