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
Argo:
I don’t talk with perverts.
mespo: nyuk nyuk….
Typical knee-jerk reactions of doomsayers (be it Marxist, Socialists, Obamarmy, New World Order, UN Soldiers with blue helmets, or… *gasp* Police State!) got all of you off your rocker? Well, that doesn’t excuse your rambling about what you think will happen if we lose our rights, ad naseum…
Please let’s get back to the subject at hand.
The ruling by California Supreme Court, does it apply ONLY to people who are arrested or to everyone in general?
OT OT OT
Story about 3 more unexplained critter die-offs.
http://www.rawstory.com/rs/2011/01/mass-bird-fish-deaths-worldwide-phenomenon/
Swarthmore mom
1, January 4, 2011 at 2:52 pm
“We only had to worry about a bowtie camera in my younger days.”
=========================
🙂 (And thanks for the song — it’s been a long time…)
Tootie:
so I take it when you have sex, you are the one who has the “religious” experience?
If Al Capone gets arrested in 1920’s Chicago and has an address book with names and phone numbers of people, the cops couldn’t have used it to gather information? Wouldn’t they need a warrant to then search the houses or persons of those noted in Al’s book?
What is the difference? Just because it is electronic doesn’t mean it is somehow sacrosanct.
Tootie:
“I see my point soared right over your head.”
******************
Likely because of the abundance of hot air.
Mespo
Wolf! Don’t you know Wolf! Wolf! a police state Wolf! (or a godless communist) when you see one? Wolf! Wolf! Wolf!
C’mon, man! – Geez.
Oh, Mespo:
I “get” Hitchens and religion. I’ve been married to an atheist for over 30 years. I know all the arguments.
Heh.
🙂
“rare or absent”
mespo:
I see my point soared right over your head.
At issue here is totalitarian and despotic government and the treatment of civilians (especially their own). At issue then is government turning on its own people in malice first and then the possiblity of murdering them through the “lawful” state apparatus. That is why I brought up the issue of the Marxists who slaughtered their own citizens and other unarmed civilians in greater number over a shorter period of time than any other group known in history.
I’m sure Hitchen probably never ran these numbers and statistics nor studied the subject for his entire professional life like Rummel has done. Why would Hitchens point to members of his own group and indicate how evil they were?
Anyway, if Hitchens had studied the subject of death of civilians by government he would have most likely gotten his data from Rummel or a person quoting him. And Rummel isn’t too favorable about what the godless types did last century. Though he really doesn’t talk much about religion except when he discusses how evil the Muslims of West Pakistan were to the Hindus of East Pakistan (Bangladesh). Going even so far as to check mens’ privates for circumcision before they slaugthered them. Gee, I wonder if that where Janet Napolitano got her idea….never mind.
The truth is that when it comes down to democidal* bloodbaths on the greatest scale known to mankind in all of history thus far, it was the godless communists (Marxists) who committed it unlike none before them. Somehow godless Marxists doesn’t sound as poetic.
I am not talking about wars between militaries and governments. Including wars in which the godless and the believer both fought side by side and lived or died. I’m talking about the bloodbath in sheer numbers committed by the godless communists against civilians (largely their own) last century being enough to permanently label the Marxists truly the worst people in human history.
Stalin murdering at a minimum 42 million unarmed CIVILIANS (excluding the war dead)in a little over twenty years; and Mao murdering 37 million unarmed CIVILIANS (excluding the war dead) in about 70 years. Tito, Lenin, and Pol Pot about 8 million combined. Again EXCLUDING the war dead.(Death by Government page 8).
On the other hand, it took about 500 years to murder about between 17 and 65 million African slaves between the various western empires of Europe. The Imperialists were pikers in comparison to Mao and Stalin together in less than a century.
Anthropologists (and not “journalists” or “authors” like Hitchens) tend to agree that most wars are over limited resources NOT RELIGION.** Religion gets tangled up with it because religion is a common feature of the human race. The old worn out meme that religion is the cause of wars comes is a simplistic conclusion of non-thinkers who might as well have said living past age 12 causes wars.
Indeed, that would be more to the truth of it.
But I’m not even talking about wars (justifiable or not). I’m talking about democide during a discussion about government despotism (i.e. the warrantless search of the cell phones)
So if you want to get pissy about it, its the Marxists…uh…say about 80 million innocents slaughtered in a little over a half century and the Puritans and their 20 dead.
Okay, that’s not pissy, it’s HYSTERIA.
On your part.
And who stopped the Puritans? The Puritans. They restrained themselves from further injustice. Would to God the Marxists could. It’s never happened and it never will because murder (especially mass murder) is inherent in Marxism.
This is why Obama is going to bump off old people (whites) in America. This is why they have already snuffed out the lives of 48 million plus innocents in the womb. Marxists do what Marxists always do: MURDER MASSIVELY.
Rummel writes (page 69)
“Of all the pre-twentieth-century killing–massacres, infanticide, executions, genocides, sacrifices, burnings, deaths by mistreatment, and the like–that to which we can put nunmbers adds up to a grand total from nearly 89 million to slighty over 260 million men women, and children.”
This number includes what the Mongol hordes did, the African slave trade and associated murders, the Crusades, the Inquisitions (secular and religious–childsplay compared to the Aztecs), and the American Indian genocide among many others.
Rummel continues “If governments massacred people in previous centuries in the same proportion to world population as in our century [the 20th] , then as shown in the table’s hypothetical tally (calculated from the twentieth-century democide rate derived in subsequent chapters and the world’s population for each century since 30 B.C), almost a fantastic 626 million people would have been killed, even possibly over 1,138 million–over a billion people.”
His point is that the totalitarians (with a smattering of authortarians) and especially the Marxists, murdered the innocent civilian at an unbelievable rate in less than ONE century.
This is the legacy of Marxism and its hand-maiden totalitarianism (a requirement). THAT is where we are heading as I write.
*Democide refers to government murder of its citizens.
**”Anthropologists at the Human Relations Area Files, a nonprofit research organization at Yale University, have found war ‘rae or absent’ in only 9 percent of 186 societies they have studied. (The most common reason for conflict? Not religion, but fear of shortages or impending natural disaster.)” Page 108 Christianity On Trial, Carroll and Shiflett.
puzzling
I’m thinking that the young may save us from this because the older folks (especially those of the Clintons age) are thoroughly corrupt and the young folks may well have had enough of this BS.
Much older folks know the score but are too old to fight (and the younger Marxist pigs like the Clintons and Obama know it).
It will be the young who can stop it. And many of these young people are beginning to wake up–like the young man in the article you linked to.
There is a great website I found that is run by one of the leading psychiatrists. Dr. Szasz. He is reaching out, especially, to young people who have become victims of our soviety style government brainwashing programs that also tag these kids as mentally disturbed when in fact they are normal.
George Bush (that dirty-rotten pig) tried to get every kid in America diagnosed by a psychiatrist. These kids are going to revolt (I hope) and throw off these monsters who have invaded their brains and their bloodstreams.
Many of these young people have been drugged throughout their childhood by these vicious bastards who should be the only ones in chains of any sort.
This is especially true of boys. They are getting the brunt of the assault by government and the psychiatric quacks.
Here is a great video clip put out by the CCHR,in conjuction iwth Dr. Szasz, an organization devoted to stopping the abuse by psychiatry (and their friends in government–lawyers, cops, legislators, judges, schools, etc.)
I’m hoping the embed video works. It’s awesome.
[youtube=http://www.youtube.com/watch?v=Wv49RFo1ckQ&fs=1&hl=en_US]
Jill,
“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.”
I do no disagree with this statement. However, a little common sense by the users of said technology goes a long way to alleviating this particular problem. Don’t tell my cats I said this, but there is more than one way to skin one. Besides, this is small potatoes next to the damage we are about to see unleashed by clowns like Darrell Issa who is literally asking businesses which tell him which laws, policies and politicians he should attack in his upcoming abuse of power.
Imagine a McCarthy style witch hunt powered by business profit motives instead of McCarthy’s insanity.
Yep.
Fire proof hand baskets for sale.
Buy two and get free rosin for your fiddlin’ bow.
Tootie:
“Marxists only wish and dream that religion was more evil than the Marxist so as to distract from their ruthless murderous rampages across the globe.
Nothing outstripes what the godless communists did last century. Not even Islam.”
****************
High praise indeed, that the manifest representatives of the almighty fair only slightly better than some of the greatest mass murders of our time. It must make them very proud.
Here’s a debate you should really watch between Christopher Hitchens and Tony Blair on the topic:
BBB
Exigency for what? If you don’t have evidence: TOUGH LUCK. You are just fishing. You have to wait till you get evidence and learn to live with life being so darn right difficult.
mespo
Marxists only wish and dream that religion was more evil than the Marxist so as to distract from their ruthless murderous rampages across the globe.
Nothing outstripes what the godless communists did last century. Not even Islam.
R.J. Rummell quantifies it in numbers and proves that nothing in history compares to the slaughter and subjugation caused by Marx and his psychotic fanatical followers.
http://www.absoluteastronomy.com/topics/R._J._Rummel
puzzling,
The ability to remote wipe presents a good argument in favor of warrantless search. Exigency.
Call logs and text messages are also considered volatile because new calls and text messages are likely to clear out older ones.
FOR ANYONE INTERESTED: Here is an extremely good summary regarding search incident to arrest cases in a number of jurisdictions.
http://www.sog.unc.edu/faculty/smithjess/documents/Welty_HandoutreWarrantlessSearches.pdf
Tootie,
Well said. The education system mandated and controlled by government starts conditioning children just months from birth. The actions now being taken against the adult population are extraordinary, fundamental, and extremely dangerous. And yet most people simple cannot see it.
To your second point, we are seeing signs that principled individuals are starting to rethink their participation in the quiet but privacy-shattering work of firms like Google. Government will never regulate these tactics because our police state is the leading consumer of this data and technology.
Some Google employees defect, then rebel
StalinistsReligionists(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 thestatereligion and escape possiblepovertydamnation rather than to live in liberty.This is because they are evil.
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There, that’s better.