The California Supreme Court has handed down an important ruling that allows police to search an arrested person’s cellphone without a warrant — a ruling that will allow police access to a wide array of information now kept on modern cellphones.
The California Supreme Court based its decision on U.S. Supreme Court precedent allowing police to seize evidence found with an arrestee when taken into custody. In People v. Diaz, the California justices relied on the exception for searches “incident to arrest” under such cases as United States v. Robinson 414 U.S. 218, 224 (1973). Notably, the prosecutors acknowledged that Diaz had a valid “expectation of privacy” in the information under Katz. However, the court dismisses the importance of the item by analogizing it to clothing:
We hold that the cell phone was “immediately associated with [defendant’s] person” (Chadwick, supra, 433 U.S. at p. 15), and that the warrantless search of the cell phone therefore was valid. As the People explain, the cell phone “was an item [of personal property] on [defendant’s] person at the time of his arrest and during the administrative processing at the police station.” In this regard, it was like the clothing taken from [*14] the defendant in Edwards and the cigarette package taken from the defendant’s coat pocket in Robinson, and it was unlike the footlocker in Chadwick, which was separate from the defendants’ persons and was merely within the “area” of their ” ‘immediate control.’ ” (Chadwick, supra, 433 U.S. at p. 15.) Because the cell phone was immediately associated with defendant’s person, Fazio was “entitled to inspect” its contents without a warrant (Robinson, supra, 414 U.S. at p. 236) at the sheriff’s station 90 minutes after defendant’s arrest, whether or not an exigency existed.
It is certainly true that the Supreme Court has gradually expanded exceptions to the Fourth Amendment that has left more holes than cheese in the protection against unlawful searches and seizures. The majority ruling does follow this trend. However, there is little effort to distinguish this new technology in terms of its implications for privacy. While cellphones are not new, the latest devices are being used for a wide array of business and personal communications and information storage. The dissenting justices noted the range of information on these devices:
the amount and type of personal and business information that can be stored on a mobile phone, smartphone or handheld computer, and would become subject to delayed warrantless search under the majority holding, dwarfs that which can be carried on the person in a spatial container. 8 As one federal district court observed in suppressing the fruits of a mobile phone search, “modern cellular phones have the capacity for storing immense amounts of private information. Unlike pagers or address books, modern cell phones record incoming and outgoing calls, and can also contain address books, calendars, voice and text messages, email, video and pictures. Individuals can store highly personal information on their cell phones, and can record their most private thoughts and conversations on their cell phones through email and text, voice and instant messages.” (United States v. Park (N.D.Cal., May 23, 2007, No. CR 05-375 SI) 2007 U.S. Dist. LEXIS 40596, *21-*22, fn. omitted.) Smartphones, as we have seen, have even greater information storage capacities.
Justice Moreno concludes that
The majority’s holding, however, goes much further, apparently allowing police carte blanche, with no showing of exigency, 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. The majority thus sanctions a highly intrusive and unjustified type of search, one meeting neither the warrant requirement nor the reasonableness requirement of the Fourth Amendment to the United States Constitution.
I share those concerns. All that the dissenting justices wanted was for police to seek a simple warrant before searching such information. These warrants can be obtained literally in a matter of minutes in some circumstances but can certainly be secured in a short time. Unfortunately, this is not the Supreme Court that I would want to review this case. The Court has left the fourth amendment in tatters and this ruling is the natural extension of that trend. While the Framers wanted to require warrants for searches and seizures, the Court now allows the vast majority of searches and seizures to occur without warrants. As a result, the California Supreme Court would allow police to open cellphone files — the modern equivalent of letter and personal messages. For people insisting that the text of the Constitution must control their interpretations, it takes a lot to ignore the language of the fourth amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Source: SfGate
Jonathan Turley
This is a ruling that is asking for abuse. Essentially anyone can be arrested for any contrived thing — even if they did nothing wrong and are later released. The privacy intrusion and resulting damage has been done. In the meantime prying eyes have access to the life of the arrested person and to the lives of everyone they have communicated with. I am concerned about psychologists and psychiatrists patients who have called and now may be contacted by the authorities. What of defense attorneys? What of corporate employees, who might have trade secrets on their phone. What of an officer who just wants to see who is included on a person’s (celebrity’s) contact list or a jealous ex who has a friend in law enforcement who wants to see who has been calling or called by the object of their desire?
lottakatz,
Your link didn’t post… and do you mean the murder of John P. Wheeler?
FFLEO: “…she aint cumfertible ‘bout hit…”
—
I’m not comfortable with it for a number of reasons but it can be boiled down to this: the best thing a citizen has going for him/her is anonymity. The less they know about you and the harder it is for them to locate you the better off you are. They may not want to find you today but next week or month or year they might for reasons that today, we might say are illegal or insane. Tools that destroy your anonymity and the data those tools collect concentrated in the hands of any federal government, and shared with every level of government is dangerous to every citizen’s liberty.
******
OT: there was a notice on another thread regarding the murder of Richard Holbrook and I can’t find it. Here is a link to an opinion that is rather interesting regarding his death. The blawg, neuf neuf is a lovely blawg, every image is a link. It’s a pretty blawg and very left of center.
mespo,
I’m glad you said something. I was going to but decided that I go against the grain enough already. 🙂
There is plenty of history supporting search incident to arrest (going back almost 900 years to the time of hue and cry).
http://volokh.com/2010/12/14/the-origins-of-the-search-incident-to-arrest-exception/
The state cases are all over the place. Ohio, Georgia, and California reached different conclusions based on different circumstances.
I think the amount of data that can be stored in “the container” is irrelevant.
Whelp folks, theyz minnie medifers out yunner to deescribub whutz a’ happinin’ tuh ‘or bill o’ rites, civil libs, ‘et setree.
Tuh me hits lik me a’pullin’ out one of them korner stones frum the outhouse foundayshun whilst Ma is a’sittin’ sid-wazs ‘n purplexed upon the thunder mug throne. She dont no whutz a’kurrin’ butt she aint cumfertible ‘bout hit and hit shur skarz the digisted stuffin’ rite outta hern bellie.
I just want to highlight the last couple of paragraphs. I think this alone qualifies as a police state. “At the same time that the FBI is expanding its West Virginia database, it is building a vast repository controlled by people who work in a top-secret vault on the fourth floor of the J. Edgar Hoover FBI Building in Washington. This one stores the profiles of tens of thousands of Americans and legal residents who are not accused of any crime. What they have done is appear to be acting suspiciously to a town sheriff, a traffic cop or even a neighbor.
If the new Nationwide Suspicious Activity Reporting Initiative, or SAR, works as intended, the Guardian database may someday hold files forwarded by all police departments across the country in America’s continuing search for terrorists within its borders.”
This is from the NYTimes: “”We have got things now we didn’t have before,” said Memphis Police Department Director Larry Godwin, who has produced record numbers of arrests using all this new analysis and technology. “Some of them we can talk about. Some of them we can’t.”
One of the biggest advocates of Memphis’s data revolution is John Harvey, the police department’s technology specialist, whose computer systems are the civilian equivalent of the fancier special ops equipment used by the military.
Harvey collects any information he can pry out of government and industry. When officers were wasting time knocking on the wrong doors to serve warrants, he persuaded the local utility company to give him a daily update of the names and addresses of customers.
When he wanted more information about phones captured at crime scenes, he programmed a way to store all emergency 911 calls, which often include names and addresses to associate with phone numbers. He created another program to upload new crime reports every five minutes and mine them for the phone numbers of victims, suspects, witnesses and anyone else listed on them.
Now, instead of having to decide which license plate numbers to type into a computer console in the patrol car, an officer can simply drive around, and the automatic license plate reader on his hood captures the numbers on every vehicle nearby. If the officer pulls over a driver, instead of having to wait 20 minutes for someone back at the office to manually check records, he can use a hand-held device to instantly call up a mug shot, a Social Security number, the status of the driver’s license and any outstanding warrants.
The computer in the cruiser can tell an officer even more about who owns the vehicle, the owner’s name and address and criminal history, and who else with a criminal history might live at the same address.
Take a recent case of two officers with the hood-mounted camera equipment who stopped a man driving on a suspended license. One handcuffed him, and the other checked his own PDA. Based on the information that came up, the man was ordered downtown to pay a fine and released as the officers drove off to stop another car.
That wasn’t the end of it, though.
A record of that stop – and the details of every other arrest made that night, and every summons written – was automatically transferred to the Memphis Real Time Crime Center, a command center with three walls of streaming surveillance video and analysis capabilities that rival those of an Army command center.
There, the information would be geocoded on a map to produce a visual rendering of crime patterns. This information would help the crime intelligence analysts predict trends so the department could figure out what neighborhoods to swarm with officers and surveillance cameras.
But that was still not the end of it, because the fingerprints from the crime records would also go to the FBI’s data campus in Clarksburg, W.Va. There, fingerprints from across the United States are stored, along with others collected by American authorities from prisoners in Saudi Arabia and Yemen, Iraq and Afghanistan.
There are 96 million sets of fingerprints in Clarksburg, a volume that government officials view not as daunting but as an opportunity.
This year for the first time, the FBI, the DHS and the Defense Department are able to search each other’s fingerprint databases, said Myra Gray, head of the Defense Department’s Biometrics Identity Management Agency, speaking to an industry group recently. “Hopefully in the not-too-distant future,” she said, “our relationship with these federal agencies – along with state and local agencies – will be completely symbiotic.”
The FBI’s ‘suspicious’ files
At the same time that the FBI is expanding its West Virginia database, it is building a vast repository controlled by people who work in a top-secret vault on the fourth floor of the J. Edgar Hoover FBI Building in Washington. This one stores the profiles of tens of thousands of Americans and legal residents who are not accused of any crime. What they have done is appear to be acting suspiciously to a town sheriff, a traffic cop or even a neighbor.
If the new Nationwide Suspicious Activity Reporting Initiative, or SAR, works as intended, the Guardian database may someday hold files forwarded by all police departments across the country in America’s continuing search for terrorists within its borders.”
I’m not convinced it’s all hyperbolic amd/or innocent.
This ruling by a State court makes me nervous.
Often trends begin in California and work their way east.
With respect to the case, I do see it as a close call. If the storage of information is the issue, would the police need a warrant to search an arrestee’s wallet or maybe the briefcase found on his person during the arrest? I doubt it. Does anyone think this decision would permit the police to stop someone and search his cell phone memory absent a valid reason to arrest him? I think the decision is a blow to the Fourth Amendment protections but not the battering ram others see it to be.
Swarthmoe Mom,
Great song and video. S&G are a favorite around here. We do have to worry more now, but Mespo is probably right that we are not in a police state. My concern is the trendline towards intrusions being the allowed norm for the last decade.
This is certainly an intrusion into the Fourth Amendment by ONE state court, but a police state? Come on now. The law waxes and wanes with respect to contours of individual rights, and is usually accompanied by the unfolding of certain human events — here the rise of terror as an instrument of political persuasion — but in no sense is California a “police state.” Police states subvert law, legalize any and all acrions of the national police, force lawyers and judges to align with the ruling party and to swear fealty to it instead of the law, and outaw criticism of any decison of the state. The very presence of this criticism against the decisison makes assertions like “police state” mere hyperbole.
I have a big ol’ knot in my stomach over this ruling and any subsequent precedent. As a man in my 60s, I have experienced freedoms that will be unavailable to my son and my grandchild—simply, I mourn for the future that should have been.
This is indeed a very dark day for all Americans, illustrating another unfolding chapter that chronicles the continuous loss of civil liberties. Even with the great legal minds that occur within this fine blawg and elsewhere in the vast legal community of America, all that appears actionable to them is the documentation of The Great Decline of the American Rule of Law…
The FBI letters are called National Security Letters and they are administrative subpoenas, requiring only the signature of an agency official. I’ve been bitching about them for a couple of years. No one knows how many have been issued.
http://en.wikipedia.org/wiki/National_Security_Letter
We only had to worry about a bowtie camera in my younger days.[youtube=http://www.youtube.com/watch?v=vCbOEZ8c8dM&w=425&h=349]
Nullification Tip #3452-98570-12987-528333.5798753
Outlaw fusion centers in your state. For what purpose are they except to spy on Americans permanently. This is a standing army of despots.
We have NO terrorist problem except the one the government creates through immigration and visas for the express purpose of creating terrorism and using it as a growth industry to provide jobs for Nazi type folks.
Jill
You wrote “Stopping a vast majority from learning the truth is one reason our newz is so completely managed.”
All the major networks (including CNN, Fox) and major newspapers, including the NYT, LATimes, etc., are corporate members of the Council On Foreign Relations (a group dedicated to the destruction of sovereign borders and the nation-state,including our own).
Phase Two: Surveillence by foreign powers within our territory once the national borders are elimited.
I believe Israel already has the authority to spy on our communications here in the US. I cannot remember where I read that.
They will I assume in some cases have access to your laptop/desk top computer since these phones allow connection to them.
Using your cell phone as a modem is perhaps the most overlooked of all Internet connection options. But a mobile phone Internet connection, whether as a tethered modem or, using bluetooth, a wireless cell phone Internet connection, is easy to set up, and with a laptop and cellphone you can check email and surf the web from anywhere, any time, with the Internet in your pocket!
Here are the basic instructions for creating a mobile phone Internet connection. The instructions are for a cell phone with bluetooth (which most cell phones these days have), but if your cell phone doesn’t have bluetooth you can buy a cable to connect your laptop to your phone from any cell phone accessory provider. Conversely, if your cell phone has bluetooth but your laptop does not, you can buy a small USB device which will enable bluetooth on your computer.
Read more: http://www.theinternetpatrol.com/how-to-connect-your-computer-to-the-internet-using-your-cell-phone-as-a-wireless-internet-connection-or-tethered-modem/#ixzz1A5t5Eacr
“His lawyer is also asking that charges be dismissed for lack of a speedy trial.” -Jill (regarding Bradley Manning)
Thanks for that bit of news.
Moar,
I’m not certain how things would turn out if more people knew the truth. We do see a small but significant group who does know but is either; 1. in willing denial or 2. actively supporting the police state because it’s their guy running the show (Bush for Rs and Obama for Ds). There is a smaller group who both knows and finds it wrong, independently of party affiliation.
Stopping a vast majority from learning the truth is one reason our newz is so completely managed. Couple this with an economy where people are working to find a job or working several jobs and still not making it– you have a population who literally has very little time to be informed. Information comes prepackaged courtesy of the lying corporate state. Add to this the use of “terror” as a thought stopping technique and a willingness by the govt. to create strife between its own citizens (divide and conquer), it’s a surprise any real information gets through at all.
I personally am most disheartened by the educated elite’s willful blindness and/or cheering on when police state tactics are employed by “their” guy. These are people who have the time and financial resources to organize against the corporate state, but they have sold their soul to it instead. People who should be important allies in the quest for justice have completely abdicated their responsibility towards others.
The best thing I can think of is to try small forms of media and in person forums to reach each other. If we can get actual information out to enough people, I believe the police state will not be acceptable any longer. But that is only my surmise.
anon nurse,
I saw that. It’s good news! His lawyer is also asking that charges be dismissed for lack of a speedy trial.
Democracy NOW! January 4, 2011
Psychologists Protest Army’s Treatment of Bradley Manning
“The group Psychologists for Social Responsibility has written a letter to U.S. Secretary of Defense Robert Gates protesting the military’s treatment of Bradley Manning, the U.S. Army private accused of leaking classified documents to the online whisteblowing website WikiLeaks. Manning has been held in solitary confinement at the U.S. Marine Corps brig at Quantico, Virginia, since July. The group accused the military of holding Manning in needlessly brutal conditions.”