cell phones and LE - Supreme Court says warrant necessary

[ck1942]

OK, this may take a while to filter down to the LEOs and the DAs, but:

in today's decision, broadcast by NYTimes....

Supreme Court: Police Need Warrants to Search Cellphone Data

Unanimous Supreme Court Says Privacy Interests Outweigh Police Convenience



WASHINGTON—The Supreme Court ruled Wednesday that police generally must obtain a warrant before searching mobile devices after arresting someone.


The court, in a unanimous ruling by Chief Justice John Roberts, said both the quantity and quality of information contained in modern hand-held devices is constitutionally protected.


Chief Justice Roberts rejected law-enforcement arguments that cellphones fell under a long-standing exception to the warrant requirement that allows police to search the contents of suspects' pockets to make sure they don't carry weapons or destroy evidence.


"Modern cellphones are not just another technological convenience," Chief Justice Roberts wrote. "With all they contain and all they may reveal, they hold for many Americans 'the privacies of life,'" he wrote.


"Our answer to the question of what police must do before searching a cellphone seized incident to an arrest is accordingly simple—get a warrant," the chief justice added.

= = = = =

For those of us who want to protect our personal data, somewhat good news.

Best of course is not to be in a compromising position (not your ass in the air kind of position) where LEOs can grab your cell -- and then get the warrant.

[jframe2]

Keep in mind that LEO can still take the device in question as evidence and attempt to get the warrant later.

So this does not affect the Probable Cause aspects at all. But it does stop LEO from going into your device as part of their interaction with you without an arrest.

Still a good idea to maintain a hobby/throwaway phone.

[ElumEno]

This is great for when you have your cell phone on your person... but it will do nothing if it is in plain sight... IE on the seat of your car being charged.

Here is scenario that a lot of people don't think about until after it is to late...

LEO pulls you over and you are confident that you have done nothing wrong so you pretty much are not worried about anything.
After a few questions they casually ask if you mind if they look around your car... to which you agree because you are still confident that you have done nothing wrong.
They ask you to please step out of the car... when you do, you reach for your cell phone which in on the charger, they stop you and tell you to please leave everything in the car.

Now because you have already agreed to letting them search your car... anything that is in the car, and not personally on you, becomes part of the car and subjected to being searched.
That includes your cell phone, laptop, PDA, briefcase, purse, luggage... you get the point... just remember you agreed to the search.


Disclaimer: I am not a lawyer... but I have spent an hour or so at the local Holiday Inn before.

[Joe Buck]

Rule #1......Never ever agree to let a cop search anything. I don't care how many times he says "If you have nothing to hide there won't be a problem." Unless he has probable cause to search your car he can do nothing. If he insist you tell him he will need a warrant and you wish to speak to an attorney. Keep in mind if he does not have probable cause the clock is ticking, he can only detain you for 20 minutes on the side of the road.

[LexusLover]

"... ask if you mind if they look around your car..."

I agree with Buck's advice, ....

...but as to permission to look around ... if you don't have anything to hide, then LE doesn't have anything for which they can justify a "look around" .. and
"looking around the car" is not the same as "looking around inside the phone" ....
especially now that the SCOTUS has written on the topic.

But when you look at the "fine print" of the opinion ... and just about any other search case decided by the Court .... each search case is "fact specific" and don't bet your future on the headlines for this decision.

In the meantime LE gets to keep your phone.

Page 25:

"We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost. Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, evenwhen a cell phone is seized incident to arrest. Our cases have historically recognized that the warrant requirementis “an important working part of our machinery of government,”
Page 26:
"not merely “an inconvenience to be somehow somehow‘weighed’ against the claims of police efficiency.” Coolidge v. New Hampshire, 403 U. S. 443, 481 (1971). Recent technological advances similar to those discussed here have, in addition, made the process of obtaining a warrant itself more efficient. See McNeely, 569 U. S., at ___ (slip op., at 11–12); id., at ___ (ROBERTS, C. J., concurring inpart and dissenting in part) (slip op., at 8) (describing jurisdiction where “police officers can e-mail warrantrequests to judges’ iPads [and] judges have signed suchwarrants and e-mailed them back to officers in less than 15 minutes”).

"Moreover, even though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone. “One well-recognized exception applies when ‘“the exigencies of the situation” make the needs oflaw enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.’” Kentucky v. King, 563 U. S., at ___ (slip op., at 6) (quoting Mincey v. Arizona, 437 U. S. 385, 394 (1978)). Such exigencies could include the need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury. 563 U. S., at ___. In Chadwick, for example, the Court held that the exception for searches incident to arrest did notjustify a search of the trunk at issue, but noted that “if officers have reason to believe that luggage contains some immediately dangerous instrumentality, such as explosives, it would be foolhardy to transport it to the stationhouse without opening the luggage.” 433 U. S., at 15, n. 9.

"In light of the availability of the exigent circumstancesexception, there is no reason to believe that law enforcement officers will not be able to address some of the more extreme hypotheticals that have been suggested: a suspect

Page 27

"texting an accomplice who, it is feared, is preparing todetonate a bomb, or a child abductor who may have information about the child’s location on his cell phone. The defendants here recognize—indeed, they stress—that suchfact-specific threats may justify a warrantless search of cell phone data. See Reply Brief in No. 13–132, at 8–9; Brief for Respondent in No. 13–212, at 30, 41. The critical point is that, unlike the search incident to arrest exception, the exigent circumstances exception requires a court to examine whether an emergency justified a warrantless search in each particular case. See McNeely, supra, at ___ (slip op., at 6).2"

http://www.supremecourt.gov/opinions...3-132_8l9c.pdf

Please don't read the headlines or the editor's synopsis in the opinion for a basis for any euphoria and perceive you can now use your cell phone as a "file cabinet" ... unless you want LE to take possession of your "file cabinet" .... FYI: LE can look at it without a warrant, they just MAY NOT be able to use it as evidence against YOU (as the owner/"possessor" of the phone).

[Unique_Carpenter]

http://www.supremecourt.gov/opinions...3-132_8l9c.pdf

LL's link misbehaves

[LexusLover]

Thanks. I'll check it next time.

[Unique_Carpenter]

YW, and very nice presentation btw. You brought out a couple key points, and yes, appropriately deflate the euphoria that others are presenting.

Your FYI comment (everyone go read it again) is critical.
And again reinforces the reason for having a spare (or two) hobby phone/laptop/pad cause LE will intentionally hold the electronics, even if just for a simple reason of interrupting business.
Justice Robert's comment (paraphrased) of "just email the judge on his handheld for a warrant" cracked me up. Ignoring that it's true (and we're all aware of that, right?), it settles the hash of any badge/prosecutor claiming that judges are difficult to get a hold of nowadays.

[LexusLover]

Originally Posted by Unique_Carpenter

Justice Robert's comment (paraphrased) of "just email the judge on his handheld for a warrant" cracked me up. Ignoring that it's true (and we're all aware of that, right?), it settles the hash of any badge/prosecutor claiming that judges are difficult to get a hold of nowadays.

As an aside LE more often than not whines about the "gray beards" preventing them from doing "their job" and "tying their hands" .. etc, etc.,... but in reality almost every opinion of theirs has some "instructions" nuggets on "how to do it" and stay "within the lines" (as the song goes). In addition every exception to the 4th amendment warrant requirements (of which there are many) are "pro-LE" in nature with one of the biggest found in Terry vs. Ohio (which BTW is misconstrued and misinterpreted by not only police, but courts, and has sense been "expanded" in following opinions). The counter-value is citizens ought to inform themselves of the "fine print" and not base their decision making on the media headlines or even the media interpretations for the same reason. The real lessons learned are in the little one-liners and provisos written into the opinion.

"We" all need to wait for the "next opinion(s)" to arrive "tweaking" and "explaining" this one, while in the meantime continuing to take precautions, so one or more of "us" don't get our name(s) published for the rest of time in one of the "tweaks" and "explanations" that appears to be a stepping back from the "headlines"! Terry vs. Ohio is a perfect example, because New York vs. Sibron, which was literally published immediately following Terry in the official S.Ct. Reporter qualIfiied and explained Terry, but Sibron doesn't get the "headlines" of Terry, and is often ignored in the following opinions, even of the SCOTUS.

[Texanbychoice]

Originally Posted by ElumEno

This is great for when you have your cell phone on your person... but it will do nothing if it is in plain sight... IE on the seat of your car being charged.

Here is scenario that a lot of people don't think about until after it is to late...

LEO pulls you over and you are confident that you have done nothing wrong so you pretty much are not worried about anything.
After a few questions they casually ask if you mind if they look around your car... to which you agree because you are still confident that you have done nothing wrong.
They ask you to please step out of the car... when you do, you reach for your cell phone which in on the charger, they stop you and tell you to please leave everything in the car.

Now because you have already agreed to letting them search your car... anything that is in the car, and not personally on you, becomes part of the car and subjected to being searched.
That includes your cell phone, laptop, PDA, briefcase, purse, luggage... you get the point... just remember you agreed to the search.


Disclaimer: I am not a lawyer... but I have spent an hour or so at the local Holiday Inn before.

A consent to search can be revoked at any time. Without probable cause to search or search incident to arrest all they can do is check wingspan for weapsons. They will have a hard time convincing a judge a phone was a gun.

Soooo. If you are dunb enough to consent to a search, you can still revoke consent BEFORE they find something. Once they find something contraband you are thoroughly screwed and will be arrested.

First...never give consent

Second...never speak unless to identify yoursf (which you are required to do).

[white_wolf]

Seeing how this is partially on the Supreme Court. I have a question about phone recordings audio and video. I thought, I heard recently that you could, without being charged of any crime, record all events while stopped or witnessing a detainment. So in short is that true, could I, if I chose too, record all events on my phone or handheld camera and, not be arrested or, detained for it?

[ShysterJon]

Originally Posted by white_wolf

Seeing how this is partially on the Supreme Court. I have a question about phone recordings audio and video. I thought, I heard recently that you could, without being charged of any crime, record all events while stopped or witnessing a detainment. So in short is that true, could I, if I chose too, record all events on my phone or handheld camera and, not be arrested or, detained for it?

Your question isn't very clear, but I think you're asking if there's a law that applies in every jurisdiction in the U.S. that makes it a crime to arrest someone recording the police anytime and anywhere. My answer is 'no.'

Let's say you're not involved in the arrest of another person that's taking place on a public street and you're recording the arrest on your phone. Let's say a cop approaches you and says, "Buddy, put that phone away or I'll arrest you." You could:

(a) put the phone away to hopefully ensure that you won't be arrested,
(b) continue to record the arrest and risk being arrested yourself, but make no comment to the cop, or
(c) continue to record the arrest and risk being arrested yourself and tell the cop, "I have researched the issue and you do not have legal grounds to arrest me."

A risk-averse person would pick option (a). A risk-inclined person would choose option (b). A dumbass would pick option (c). As I've written many times before, a cop can arrest anybody for anything anywhere -- even "picking your feet in Poughkeepsie." You may beat the rap, but you won't beat the ride. A way to almost ensure your arrest is to commit the crime of POTP -- pissing off the police (aka 'disorderly conduct,' 'interference with a police officer,' 'obstruction of justice,' etc.). One way to commit the offense of POTP is to lecture a cop on the law.

I like option (b). You can have a number of motives for picking option (b) -- to try to deter police abuse, to become famous by having your video played on TV or on the Internet, or maybe even selling your video. But you risk being arrested and all that entails.

The same basic analysis applies to recording the police when you're stopped while driving. I wouldn't suggest whipping out your shiny new iPhone 6 and holding it up in front of Barney Fife's face.

I found this article insightful:

http://blogs.findlaw.com/blotter/201...rd-police.html

[white_wolf]

That answers my question. Thanks! And, sorry I don't have the vocabulary to get it across clearly.