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
Stalinists (blood thirsty murderers from the pit of hell)do always scare simple folks into believing it is better to be subjugated and a slave to the state and escape possible poverty rather than to live in liberty.
This is because they are evil.
It is better to be poor and free than rich and enslaved.
Evil people think otherwise.
Mike
I agree with you about younger people not being afraid to hang themselves all out in public (on social networks) and etc. A good deal of this probably comes from public schooling where children are not encouraged to have an individualist identity. Individualism, naturally, is disapproved of by our Marxist police-state inducing public schools.
Of course, many private schools subscribe to the same dehumanizing techniques. So even they don’t escape. This is why it so easy for Janet Napolanto to insist innocent citizens are to be sexually molested for their own “safety” and assume such molestation is virtuous.
She doesn’t have a shed of personal dignity herself and so she doesn’t even recognize that anyone else might. It has been stripped from her psyche. She, like these young people, have long been brainwashed to ignore their privacy and their person.
I think it was James Madison who said that even our opinions were our actual property. And at that time it was believed that our own bodies were our property too. In the sixties there was a book called Our Bodies, Ourselves. It was a womens libber book but goes to the heart of the issue about our bodies and our opinions and even our “effects” including our “data”. These were always things to protect.
This line of thinking was once a very treasured idea. To lose this concept isn’t just a ho-hum indication of changing times or philosophies. It is not an advancement. It is an indication of massive large-scale moral depravity or debauchery seen in sharp focus when government expects us to accept sexual molestation as part and parcel of everyday life.
All this is connected.
Self is subjuated to the group and there is nothing to protect it as other people own it.
Frankly, it is disgusting.
You won’t see the owners of Face Book and Google hanging themselves or their families out in public. They live in gated communities, have security systems, and protect everything about themselves they can. Including what is on the internet.
They only wish to profit from people who have been subjugated, striped of their own identity, and acclimated to being members of the proverbial “Borg”.
This is the condition caused by mass government-sponsored education.
Those who run these social networks benefit from the brainwashing and even mock their subscribers.
It is shameful and ruthless.
iPhones with Apple’s Mobile Me service already have remote, secure wipe capability to erase contents from a phone if you or someone you know can get to a web browser.
Android phones also have applications that enable remote wiping, like Lookout.
These are far from foolproof for several reasons, but in combination with screen locking passwords do modestly raise the chances that citizens will be able to arrange removal of personal data before searches could be performed.
I have also recommended that citizens filming police capture events using applications like Qik or justin.tv so that images are pushed up to a cloud immediately and can’t be accessed or erased by law enforcement when the device is seized.
Prediction: Newly released military-grade encryption for consumer voice calls on cell phones will quickly be outlawed:
http://www.securityweek.com/military-grade-voip-encryption-iphone
Only if you want abject poverty and true Christo-fascism is Ron Paul the answer for anything.
Jake
Correct (Ron Paul)
Again, the answer to this problem is President Ron Paul
rafflaw:
I agree. The problem is that my kids would be unlikely to even consider the possibility that rifling through their smart phones has constitutional ramifications. My cell phone is used strictly to make and receive calls.
Mike A.,
The difference with people sharing their information on the social web sites is that they are choosing to give it as opposed to the government grabbing the information without a warrant. Maybe Buddha has the right idea, just don’t keep any important information on your phone.
can’t wait till a cop is checking someones cellphone and finds nude pics of his wife or daughter
BIL,
That’s great and I know you would do it. But this ruling effects people who were never lawyers and are unlikely to know their rights. They are going to hand over the phone because they are terrified and/or confused and everything will be downloaded. In some ways, as I’ve tried to show, it’s already too late to worry about this. Information is collected on us all the time by the govt/corporate nexus. Still, I feel it does shred the 4th amendment in the way Mike A. and JT describe. Making that shredding legal, instead of illegally taking data by lurking in the darkness, is a real harm. This nation is in the process of making the illegal, “legal”, not just with this, but with many abridgments of our rights. We will regret this.
Jill,
Besides that . . . I’ve moved away from encrypting data. I simply don’t store anything electronically that I have security concerns over. And since my primary concern security-wise is identity theft and the government already knows my SSN, they would get a grand total of my writings, my music collection and some legal dirty pictures of other people off of one of my hard drives. And I use a cell phone as a phone only with no data stored.
Security is a mindset as much as it is tools for implementation.
And if I were to run across a judge like that Jill?
I’m not really that concerned.
In a police state, if they want to disappear me, they could do it tomorrow.
If I’m in on contempt?
So be it.
I know what the Constitution says and I’m willing to fight for it.
I agree with those who view this decision as deeply troubling. However, I also believe that the gradual emasculation of the Fourth Amendment is reflective of changes in social attitudes as well.
In 1890 Samuel Warren and Louis Brandeis published their now famous article, “The Right to Privacy,” in the Harvard Law Review. The article traces the development of common law remedies to protect an individual’s property interests, from simple protection against physical assault through protection against theft of intellectual property. It was time, they argued, for the common law to recognize a right to privacy, the right “to be let alone,” which they found to be fundamental to a proper appreciation and enjoyment of the right to life.
When I was in law school, I wrote a comment on the newly enacted Fair Credit Reporting Act. In the course of my research I read transcripts of the congressional hearings and was stunned by the liberties taken by credit reporting agencies in their “investigations” of individuals, a problem which the legislation didn’t successfully address.
But the concept of a right to privacy appears almost quaint today. Has anyone not been an unwilling listener to private cell phone conversations conducted in every imaginable public venue? The billionaire founder of Facebook regards the very notion of privacy as a relic from a time unknown to anyone under thirty. Proponents of national identity cards, and there are many, believe that privacy is incompatible with true patriotism. My own kids, now 30, 31 and 40 years of age, willingly share all sorts of personal information about themselves on every conceivable website without the slightest hesitation. When I discuss the right to be let alone with them, they look at me as though I were some sort of anti-social curmudgeon (which may be true, but that’s not the point).
These changes deeply impact public attitudes regarding the limits on one’s expectation of privacy. Therefore, I do not expect a lot of negative reaction to the decision, and I agree with Prof. Turley that there is little comfort to be found on the issue in the current version of the Supreme Court.
my last comment was intended for Tootie …
Whew … I thought you’d lost touch with reality and were criticizing his basketball skills.
BIL,
That’s the kind of poor memory that can find you sitting in jail until it returns! And there are other ways. I urge a check with the EFF on this one.
Blouise:
Sorry for the typos. This one needs most corrections.
“That which violates the Constitution but he permits and upholds Constitutions is the evidence of his overthrow and usurpation.”
Should read:
That which violates the Constitution, but he permits, is evidence of his overthrow and usurpation.”
Sorry, I’ve worked the graveyard shift this week and I’m in transition right now back to day hours.
It isn’t easy for an old girl to do and it always shows up in my typing.
Blouise:
He is overthrowing the Constitution. And he is overthrowing the separation of powers. He is a Robespierre.
And he knows, because he has thoroughly studied, that destabilization leads to dictatorship, either for himself or for those who follow him.
He awaits it because he knows he will likely have a seat at the regional government table.
All despots support a surveillance state. Which is why Obama supports it. If he weren’t despotic he would oppose the surveillance state. But you notice that he does not oppose it, but encourages it.
That is your clue.
Obama will also not be satisfied once he is removed from power (despots never are). That is why he supports the formation of a regional and global governing bodies (for example, the North American Union). This is the goal of the Council on Foreign Relations and they direct Obama’s presidency. He is likeminded with their goals.
He hopes to have a place at that regional or world government table and he is preparing this country for it by ignoring the Constitution and issuing edicts and usurpations (like Obamacare). There are many players in this global game, including those in congress and every branch of government. This villany is about one hundred years old and has infiltrated the whole of the governemnt.
He is the lastest carrier of the baton in the world government relay. Whether he is the one who hands us over to it is something I do not know.
If he loved the Constitution and this country (like I do) he would never do the things he does (like sign Obamacare, like support the DHS, like uphold the Patriot Act, and so forth).
That which violates the Constitution but he permits and upholds Constitutions is the evidence of his overthrow and usurpation.
If he can made presidential signing statements and directives that he has no justification for, he surely can make ones he does have justification for.
Which is steadfastly refuses to do.
This is because he is subverting the government.
Jill,
Forgetfulness is a wonderful thing. Or give them the wrong one and then play stupid. Lost passwords happen every day. Ask any IT guy. I personally have an old encrypted drive in storage BECAUSE I forgot the password.
[youtube=http://www.youtube.com/watch?v=K8JkB-OR7H4&fs=1&hl=en_US]