Jump to content

Welcome to Nightly.Net
Register now to gain access to all of our features. Once registered and logged in, you will be able to create topics, post replies to existing threads, give reputation to your fellow members, get your own private messenger, post status updates, manage your profile and so much more. If you already have an account, login here - otherwise create an account for free today!
Photo

Villain Judge: It's OK for Police to Search Cell Phones Without Warrant


33 replies to this topic

#1
Pong Messiah

Pong Messiah

    don't want to be buried in a pet cemetery

  • Moderators
  • 17,281 posts
The U.S. Court of Appeals for the 7th Circuit ruled it is now legal for police to search cell phones without a warrant.

But it's for our personal safety, of course. To help catch the bad guys.

:eek:

#2
NumberSix

NumberSix

    Time starts NOW.

  • Supporters
  • 29,390 posts
Anything that makes cell phone users cry is okay by me.

#3
Stallion

Stallion

    Member

  • Admin
  • 22,888 posts
I don't see it as a huge ordeal if it's used for major emergency situations where there is no time to get a warrent.

However, since I know in pratice it won't be used for that, i can't say I agree with this rulling. It sounds good on paper, but it'll open to much of a can of worms, I hope the supreme court shoots it down.

#4
Guest_bodega_*

Guest_bodega_*
  • Guests

Anything that makes cell phone users cry is okay by me.


When they come for the rotary phone users it will be too late.


#5
Ms. Spam

Ms. Spam

    MS.

  • Members
  • 13,925 posts
I guess it makes sense. I just can't help thinking of policemen holding the phone up to light and flipping it over a few times. Maybe rubbing it on a thigh and then giving it back. Search me officer! All I have is this here cell phone!

I am sorta weird though about cell phones. I have one but most of my numbers are memorized and all the officer will get a billion pictures of my cat doing boring things.

#6
Justus

Justus

    Member

  • Members
  • 12,443 posts

all the officer will get a billion pictures of my cat doing boring things.


They should haul you in just for that.

#7
Guest_Letsgo_7_7_*

Guest_Letsgo_7_7_*
  • Guests
Thanks for the link Pong- I love 4th amendment cases and I find this area of the law fascinating, since there is a significant amount of litigation on it, and multiple cases go up to Supreme Court, seemingly every year.

The case, for those interested in reading, is United States v. Flores-Lopez
http://www.ca7.uscou...mp/G80HEGAU.pdf

Legal analysis to follow (depending on how busy I am at work today), but one thing I should point out from the get-go, so we're all on the same page- the issue in this case is not wiretapping a cell phone and intercepting transmissions. That's a whole different area of 4th amendment law. This case deals solely with whether the police, upon an arrest, can look through the suspect's cell phone for data (like phone numbers and what not).

In this case, Flores-Lopez was a meth supplier to a dealer. In a sting operation with an undercover agent, Flores-Lopez was arrested, and cell phones he had in his truck were searched, which revealed incriminating evidence. So that's the issue this case is discussing.

4th amendment law is tricky and changes all the time (like I said, the Supreme Court puts out new rules basically every year), but I will give my read on the case a little later today. I'd also be interested to hear JM's take on the case, as if I recall, he practices in this area.

#8
Evolence

Evolence

    Member

  • Members
  • 12,066 posts
On a broader level, I have a BIG problem with this. Being detained by the police should not be grounds for such a search. However, if there is enough evidence to support a full-blown arrest, then I can see this being less of an issue. For example, if I'm pulled over by the police...I have the right to refuse them the ability to search my vehicle. However, if I blow a 1.0 on the breathalyzer and am arrested for DUI, I have forfeited that right. The police can then (whether right or wrong) search my vehicle. I guess I see this in a similar context. The problem is, if such a cell phone search is desired, the motivations for an "arrest" become magnified. Suddenly, a suspect who is detained for mere questioning ends up being arrested for things like "resisting" (or other hazy allegations that would support detention beyond a simple questioning).

#9
Darth Krawlie

Darth Krawlie

    privileged ****lord

  • Supporters
  • 32,134 posts
If you blow a 1.0 on a breathalyzer you're lucky to be alive.

#10
Pong Messiah

Pong Messiah

    don't want to be buried in a pet cemetery

  • Moderators
  • 17,281 posts
Hahah.

Seriously. Generally speaking, anything higher than 0.12 means you are full-on drunk.

1.0 = WASTED!

#11
Guest_Letsgo_7_7_*

Guest_Letsgo_7_7_*
  • Guests
Wasted? Krawlie is right, at 1.0 you are dead.

Heck, at .40, you are probably dead.

#12
Brando

Brando

    83% Muppet

  • Members
  • 14,073 posts
If you blow less than 1.0, you're lucky to be considered a man.
  • Darth Krawlie, Pong Messiah and Copper +1 this

#13
Stallion

Stallion

    Member

  • Admin
  • 22,888 posts

On a broader level, I have a BIG problem with this. Being detained by the police should not be grounds for such a search. However, if there is enough evidence to support a full-blown arrest, then I can see this being less of an issue. For example, if I'm pulled over by the police...I have the right to refuse them the ability to search my vehicle. However, if I blow a 1.0 on the breathalyzer and am arrested for DUI, I have forfeited that right. The police can then (whether right or wrong) search my vehicle. I guess I see this in a similar context. The problem is, if such a cell phone search is desired, the motivations for an "arrest" become magnified. Suddenly, a suspect who is detained for mere questioning ends up being arrested for things like "resisting" (or other hazy allegations that would support detention beyond a simple questioning).


And that's why I can't fully support this. It leads to many openings for abuse. I like the idea to it, but it's easy to twist around.

#14
James Madison

James Madison

    Notre Dame Fanatic

  • Members
  • 7,023 posts

Thanks for the link Pong- I love 4th amendment cases and I find this area of the law fascinating, since there is a significant amount of litigation on it, and multiple cases go up to Supreme Court, seemingly every year. The case, for those interested in reading, is United States v. Flores-Lopez http://www.ca7.uscou...mp/G80HEGAU.pdf Legal analysis to follow (depending on how busy I am at work today), but one thing I should point out from the get-go, so we're all on the same page- the issue in this case is not wiretapping a cell phone and intercepting transmissions. That's a whole different area of 4th amendment law. This case deals solely with whether the police, upon an arrest, can look through the suspect's cell phone for data (like phone numbers and what not). In this case, Flores-Lopez was a meth supplier to a dealer. In a sting operation with an undercover agent, Flores-Lopez was arrested, and cell phones he had in his truck were searched, which revealed incriminating evidence. So that's the issue this case is discussing. 4th amendment law is tricky and changes all the time (like I said, the Supreme Court puts out new rules basically every year), but I will give my read on the case a little later today. I'd also be interested to hear JM's take on the case, as if I recall, he practices in this area.


There are two searches in this fact pattern but only one is of concern to the 7th Circuit. There is the search of the defendant's person incident to arrest which yieled a cellular phone and a search of the interior part of the truck in which 2 more cellular phones were located. This is one search and can be properly justified under the rationale of Chimel and Gant.

The other search is accessing the phone itself, and by accessing we are discussing more than merely turning it on, or flipping it open, but looking at data contained on the phone/in the phone. This search is the issue in the case.

Judge Posner makes some rather intriguing remarks about the jurisprudence relied upon by the government. The government argued a container found on the person of an arrestee may be searched incident to arrest, despite officers lacking suspicion the container holds a weapon or contraband, and without any justification related specifically to the container. In supporf to this argument the government relied upon the U.S. Supreme Court decision of United States v. Robinson, 414 U.S. 218 (1973). In this case, the officer was arresting the defendant for driving while suspended and during a patdown of his person, felt an object in the pocket of the coat the defendant was wearing, placed his hand in the pocket, and retrieved a crumpled package of cigarettes. The officer could feel objects in the package of cigarettes but couldn't discern what they were but knew they weren't cigarettes. The officer then open the cigarette package and found 14 gelatin pills of heroin.

Interestingly enough, Judge Posner's scrutiny of the government's position is rather intriguing, primarily because it is very likely wrong and he ultimately adopts a variation of their position later on in the decision.

"This is a fair literal reading of the Robinson decision. But the Court did not reject the possibility of categorical limits to the rule laid down in it. Suppose the police stop a suspected drug dealer and find a diary, but a quick look reveals that it is a personal diary rather than a record of drug transactions, yet the officers keep on reading. A court might say that acquiring information known to be unrelated to the crime of which the person being arrested is suspected is an intrusion beyond the scope of Robinson’s rule." Emphasis mine.


This is a rather untenable interpretation of Robinson since the arresting officer in Robinson was engaging in a search of the coat pocket and cigarette package, for what he likely suspected to be drugs but was unsure, when the defendant was under arrest for driving while suspended.

Posner eventually justifies the search of the phone by returning to where he began his opinion, analysis of the Robinson decision, while implicitly adopting the government's interpretation of Robinson with a limiting rule announced in a prior 7th Circut Court of Appeals decision of United States v. Concepcion, 942 F.2d. 1170 (7th. Cir. 1991). In Concepcion, the 7th Circuit permitted the warrantless search because what was involved was a "minimally invasive search" and the "privacy interests so small" as to permit the search under the 4th Amendment.

So, eventually, the 7th Circuit deduces a hybrid rule, mixing the reasoning of Robinson with Concepcion, a search incident to arrest of containers, like a cellular phone, is allowed when the search is "no more invasive than say a frisk, or the search of a conventional container, such as Robinson's cigarette pack." Essentially, a search incident to arrest of a container is permissible when the search is not invasive relative to the government's need to preserve evidence or safety,it is a "minimal" search and the privacy interests involved are "small."

Interestingly, the 7th Circuit espoused this rule to assist officers make better decisions about the propriety of a search incident to arrest. In my estimation, relying upon the Chimel and Arizona v. Gant rationale is likely more applicable and controlling and the direction I believe the Court is moving towards in the search incident to arrest context, as opposed to adhering to the Robinson rule for containers found on the arrestee's person. The police found a cellular phone on the defendant's person and two in the truck. The defendant was arrested for dealing drugs. Police had reason to believe the cellular phones contained evidence related to drug dealing or evidence of drug dealing. Now, essentially the issue will become one of whether the evidence on the cellular phone can be lost and if so, then the police are permitted to search it to preserve it as a search incident to arrest.





#15
El Chalupacabra

El Chalupacabra

    TacocaT

  • Members
  • 5,456 posts
Someone please clear this up for me. If a cop stops you, and wants to check your text or call history on a cell phone you have in a car, or on your person, they may do so. Does that essentially summarize what is going on, here?

If that is the case, then what happens when your phone is password protected? The cop can't access the phone or its contents unless:

1. They demand the password from you, which as far as I know, there is no law requiring you to give a password to a cop, nor can a cop prove you didn't "forget" your password, if you respond to the cop you "forgot" it and can't comply

2. The cop seizes the phone, and takes it into a computerized crime lab to hack it. In my mind, it is one thing to view a phone's software contents on the spot, but a totally different thing altogether to take a phone away from someone without a warrant, and hack into it. that seems to violate the 4th amendment to me

Also, does this mean this extends to laptops, netbooks, iPads, or other tablet PCs, too? When you have skype or vonage or something similar, you basically turn those devices into phones, or phone-like devices.

#16
Guest_Letsgo_7_7_*

Guest_Letsgo_7_7_*
  • Guests

If a cop stops you, and wants to check your text or call history on a cell phone you have in a car, or on your person, they may do so. Does that essentially summarize what is going on, here?


No. The issue here is whether a warrantless search incident to arrest can legally encompass the cell phone search. You need to have an arrest. Although, there do happen to be other exceptions to needing a warrant and being in a car (the so called "automobile exceptions"), which I won't get into right now since they are confusing and not really related to this case.


JM- interesting analysis. I have a response when I get home from work today

#17
James Madison

James Madison

    Notre Dame Fanatic

  • Members
  • 7,023 posts


If that is the case, then what happens when your phone is password protected? The cop can't access the phone or its contents unless:

1. They demand the password from you, which as far as I know, there is no law requiring you to give a password to a cop, nor can a cop prove you didn't "forget" your password, if you respond to the cop you "forgot" it and can't comply

2. The cop seizes the phone, and takes it into a computerized crime lab to hack it. In my mind, it is one thing to view a phone's software contents on the spot, but a totally different thing altogether to take a phone away from someone without a warrant, and hack into it. that seems to violate the 4th amendment to me

Also, does this mean this extends to laptops, netbooks, iPads, or other tablet PCs, too? When you have skype or vonage or something similar, you basically turn those devices into phones, or phone-like devices.



Someone please clear this up for me. If a cop stops you, and wants to check your text or call history on a cell phone you have in a car, or on your person, they may do so. Does that essentially summarize what is going on, here?


No, the issues in this case are whether A.) During a search incident to arrest police may B.) Search containers found on your person as a search incident to arrest and C.) Whether a cellular phone constitutes as a container or comes within the rule of searching containers found on an arrestee pursuant to a search incident to arrest.

2. The cop seizes the phone, and takes it into a computerized crime lab to hack it. In my mind, it is one thing to view a phone's software contents on the spot, but a totally different thing altogether to take a phone away from someone without a warrant, and hack into it. that seems to violate the 4th amendment to me


There are some situations called exigent circumstances, which would permit seizure of and a search of your phone without a warrant, consistent with the 4th Amendment.

#18
El Chalupacabra

El Chalupacabra

    TacocaT

  • Members
  • 5,456 posts
Thank you for the responses LG, and JM.

No. The issue here is whether a warrantless search incident to arrest can legally encompass the cell phone search. You need to have an arrest. Although, there do happen to be other exceptions to needing a warrant and being in a car (the so called "automobile exceptions"), which I won't get into right now since they are confusing and not really related to this case.


No, the issues in this case are whether A.) During a search incident to arrest police may B.) Search containers found on your person as a search incident to arrest and C.) Whether a cellular phone constitutes as a container or comes within the rule of searching containers found on an arrestee pursuant to a search incident to arrest.


So this means that they are trying to determine if the cell phone is a searchable device, in the same way a wallet or other possession is, after someone is arrested, not prior to arrest like I was thinking?

There are some situations called exigent circumstances, which would permit seizure of and a search of your phone without a warrant, consistent with the 4th Amendment.

Interesting. Do you have an example of a scenario? Would this be something like a national security issue or something similar?

#19
Guest_Letsgo_7_7_*

Guest_Letsgo_7_7_*
  • Guests

So this means that they are trying to determine if the cell phone is a searchable device, in the same way a wallet or other possession is, after someone is arrested, not prior to arrest like I was thinking?


Yes. Go back and read my original description (and JM's) of the case, or the case itself. The phones were seized from Flores-Lopez's person and his truck after the arrest, then searched.

A search before an arrest, also called the Terry frisk, is a different area of the law completely.

http://en.wikipedia....wiki/Terry_stop

#20
James Madison

James Madison

    Notre Dame Fanatic

  • Members
  • 7,023 posts

Thank you for the responses LG, and JM.

No. The issue here is whether a warrantless search incident to arrest can legally encompass the cell phone search. You need to have an arrest. Although, there do happen to be other exceptions to needing a warrant and being in a car (the so called "automobile exceptions"), which I won't get into right now since they are confusing and not really related to this case.


No, the issues in this case are whether A.) During a search incident to arrest police may B.) Search containers found on your person as a search incident to arrest and C.) Whether a cellular phone constitutes as a container or comes within the rule of searching containers found on an arrestee pursuant to a search incident to arrest.


So this means that they are trying to determine if the cell phone is a searchable device, in the same way a wallet or other possession is, after someone is arrested, not prior to arrest like I was thinking?

There are some situations called exigent circumstances, which would permit seizure of and a search of your phone without a warrant, consistent with the 4th Amendment.

Interesting. Do you have an example of a scenario? Would this be something like a national security issue or something similar?


So this means that they are trying to determine if the cell phone is a searchable device, in the same way a wallet or other possession is, after someone is arrested, not prior to arrest like I was thinking?


Yes. For example, presently, if someone is under arrest, law enforcement is permitted to search the arrestee's person and remove objects found on his/her person. Presently, the widely accepted position by the vast majority of jurisdictions and federal circuits is law enforcement may search those objects found on the arrestee's person. So there are two searches, A.) Search of the person incident to arrest and B.) Search of those objects found on the arrestee's person.

All right, so if person X is arrested and an aspirin bottle is found on his person during a search incident to arrest, then law enforcement may search the aspirin bottle. See Robinson case cited in prior post (search of crumpled cigarette package found during search incident to arrest was permissible because the search incident to arrest justified the search).

Now, the issue is whether Robinson allows a search of the cellular phone incident to arrest.

Interesting. Do you have an example of a scenario? Would this be something like a national security issue or something similar?


Yes, very similar to the idea of jeopardizing national security. Let's suppose law enforcement finds a cellular phone on a suspected terrorist and they have reason to believe a bomb in some location can be remote detonated by the cellular phone on the terrorist. In addition, the cellular phone can also deactivate the bomb and the numeric code to detonate or deactivate the bomb is on the cellular phone. In this situation, law enforcement would be permitted to seize the phone and search it incident to arrest without an a search warrant.

#21
Guest_Letsgo_7_7_*

Guest_Letsgo_7_7_*
  • Guests
I thought about this case some more today, and here's my initial take. JM, I also have a response, in the second part of this post.

First some background with those unfamiliar with 4th amendment law. The police may not search unless the search is reasonable (that is from the text of the 4th). To be reasonable, a proper warrant will suffice (which requires a determination by a judge of probable cause), but there are also reasonable searches that do not require a warrant. Those are the "warrant exceptions."

Most case on the 4th deal with one of two things
1) Was there a search? (some things are specifically mentioned in the 4th, such as a house search, but for example, if the police can see plants of cannabis growing in your back yard through a chain link fence, the fact they can see that is not a "search")
2) If there was a search, was it reasonable (i.e. do you have a proper warrant w/ probable cause or a warrant exception)

There are lots of warrant exceptions- Terry frisks, exigent circumstances (as JM mentioned), consent (sounds funny, but you'd be surprised what people will let cops do if they ask), border searches, points of entry (i.e. airports), the automobile exceptions (of which there are many and they are confusing), and the one at question here, the search incident to arrest.

More specifically, this case involves searches of "containers" incident to arrest... the word container probably being used because one of the earliest cases on this question (Chadwick), involved an actual container- luggage that was moved into a car trunk, and the question was whether that luggage could be searched under the "automobile exception" to needing a warrant. Now if this sounds confusing, it get worse, since cases since Chadwick have kinda gone back and forth on containers, and it's difficult to keep things straight. The word container, though, meaning something that can hold stuff (whether data or physical is not important).

The current law, as far as containers in cars goes, is Acevedo, which states that containers in cars can be searched without a warrant. (you still need probable cause to search it)

Now, there are some other cases relevant to this one, in terms of searching incident to arrest.

Originally the rule was Chimel, which said that a search conducted incident to arrest was limited to the person and area within which he can reach for a weapon or destroy evidence. But then there was Belton, which said those searches could include the passenger compartment of car and containers there if arrested after being pulled over for a traffic violation. Now, it seems Belton was overruled with Gant, which was in 2009. Gant says that you can search but only if the arrestee is within reaching distance of the passenger compartment OR reasonable to believe the vehicle contains evidence of the reason for arrest (so for example, if you are arrested for something completely unrelated to drugs, you can't start searching the guy's car for drug baggies).

There is one more wrinkle here, and this is Robinson, which JM has already explained (you can search 'containers' on the person incident to an arrest- in that case, it was a pack of cigarettes in the guy's pocket).

Now, as JM mentions, the Court here largely relied upon Robinson, but as he mentions, the Court fashions a new rule... stating "Thus, even when the risk either to the police officers or to the existence of the evidence is negligible, the search is allowed, United States v. Robinson, supra, 414 U.S. at 235, provided it’s no more invasive than, say, a frisk, or the search of a conventional container, such as Robinson’s cigarette pack, in which heroin was found. ... Looking in a cell phone for just the cell phone’s phone number does not exceed what decisions like Robinson and Concepcion allow."

Now, I suppose that settles it as far as Flores-Lopez's personal phone goes (in terms of a number on his phone), and that is why the Court here focuses on Robinson, since the other two phones in his trunk were not admitted into evidence (more on those later). But JM, you bring up an interesting point about Posner's reading of Robinson. He states the Court didn't reject categorical limits to Robinson, and that certain searches might be beyond Robinson (say, those unrelated to the crime), but as you ask, that's odd since in Robinson, the suspect was pulled over due to his suspended license. Now it could be that the police knew he had heroin on him, I don't know (it's been a long time since I've read the case), but I don't really remember the Court saying that the search of Robinson was dependent upon it relating to the crime... something that sounds a lot more like Gant, but Gant has to do with searches in automobiles. So, my question for you JM is, do you care to elaborate on Posner's take on Robinson?

I think it could be troublesome, and perhaps difficult to apply this case in the future, because the new rule in this case may not have much basis in Robinson, and the Court declined to discuss its limits: "We need not consider what level of risk to personal safety or to the preservation of evidence would be necessary to justify a more extensive search of a cell phone without a warrant...We can certainly imagine justifications for a more extensive search. The arrested suspect might have prearranged with coconspirators to call them periodically and if they didn’t hear from him on schedule to take that as a warning that he had been seized, and to scatter....But these are questions for another day, since the police did not search the contents of the defendant’s cell phone, but were content to obtain the cell phone’s phone number."

So all we really know at this point is that obtaining a number from the phone is OK, but a "more extensive search" may not be? Posner seems to suggest that could be the case in his discussion of Robinson's apparent limits, but I don't recall those limits, which means that, at least at this point, I'm not particularly sure that the holding in this case is of much use to police officers (or lawyers).

Now, as to your discussion regarding Gant. Well, first, I'm not sure Gant really applies in a material way, at least in this specific case, since the other 2 phones in the truck weren't admitted. Do you think there is a reason to apply Gant to the phone that was actually on Flores-Lopez? I don't. But let's say we're talking about the phones in the truck, well.... Flores-Lopez wasn't near the truck anymore, but I suppose the phones could have contained evidence of the crime (i.e. meth distribution), so Gant applies that way. In that case, I don't see why the fact that these are phones (as opposed to, say, bags that might have drugs in them, or a suitcase that could have a firearm, etc.), has much to do with anything. At least by my reading of Gant, I think the determinative factor is whether the container reasonably has evidence of the crime, which in this case it would. So it's probably only a matter of time until we get a variation of this case with a phone searched in a car, in which case we'll see Gant applied as such. My question to you regarding Gant is:

Now, essentially the issue will become one of whether the evidence on the cellular phone can be lost


I don't recall that really being an element of the Gant analysis....? (but rather just if the phone is reasonably related to the offense of the arrest or not)

Edited by Letsgo_7_7, 08 March 2012 - 08:29 PM.


#22
El Chalupacabra

El Chalupacabra

    TacocaT

  • Members
  • 5,456 posts

Yes. For example, presently, if someone is under arrest, law enforcement is permitted to search the arrestee's person and remove objects found on his/her person. Presently, the widely accepted position by the vast majority of jurisdictions and federal circuits is law enforcement may search those objects found on the arrestee's person. So there are two searches, A.) Search of the person incident to arrest and B.) Search of those objects found on the arrestee's person.

All right, so if person X is arrested and an aspirin bottle is found on his person during a search incident to arrest, then law enforcement may search the aspirin bottle. See Robinson case cited in prior post (search of crumpled cigarette package found during search incident to arrest was permissible because the search incident to arrest justified the search).



Yes, very similar to the idea of jeopardizing national security. Let's suppose law enforcement finds a cellular phone on a suspected terrorist and they have reason to believe a bomb in some location can be remote detonated by the cellular phone on the terrorist. In addition, the cellular phone can also deactivate the bomb and the numeric code to detonate or deactivate the bomb is on the cellular phone. In this situation, law enforcement would be permitted to seize the phone and search it incident to arrest without an a search warrant.


Now, the issue is whether Robinson allows a search of the cellular phone incident to arrest.


Well, put in that context, I think there is a case to be made that searching cell phones without a warrant can, and in some cases, should be allowed. It really depends on the context of the search, though, but making a blanket statement that absolutely no searches of cell phones should be allowed or that any searches of cell phones erode personal freedom isn't necessarily correct. If someone has been arrested already, and a cell phone is on that arrestee, then I can see that phone being fair game for searching for some of the following reasons (not necessarily limited to these, just what I can think of at the moment):

1. The cell phone has contacts of known co-conspirators of the crime which the original arrestee was arrested for or charged with, and this evidence can be used to confirm that the arestee knew the conspirators and is evidence they were conspiring to commit a crime (IE the arestee was accused of trying to hire a hit man, but denies it or knowing any hit men, yet has a text conversation discussing with a known hit man about killing his wife)
2. there is recorded evidence that directly ties the arestee to a crime or conspiracy to commit a crime (IE some teen dumb enough to record himself with friends vandalizing an abandoned home~that happens a lot)
3. An instance where law enforcement needs to confirm that the arestee was at a scene of a crime while the phone was on them, and through pinging of cell phone towers, they can confirm with the phone company's records that the arestee was in fact at the scene of the crime

Yes. Go back and read my original description (and JM's) of the case, or the case itself. The phones were seized from Flores-Lopez's person and his truck after the arrest, then searched.

A search before an arrest, also called the Terry frisk, is a different area of the law completely.

http://en.wikipedia....wiki/Terry_stop

Thanks for informing me of the legal term of the instance in which I have a big problem with cell phone searches prior to arrest or establishment of legitimate and probable cause, barring some instance where it is a case of national security or literally life and death and immediate action needs to be taken to prevent it, of course. This Terry stop instance being used as an excuse to riffle through someone's cell phone without probable cause or warrant, especially if it is in reality a fishing expedition, is in fact a danger to personal liberty and should not be permitted.

I do not see how a Terry stop can be used to justify searching a cell phone, or maybe even the cell phone itself being used as justification to stop that person, if there is not enough evidence to arrest that person already. I don't have a problem if someone who was already arrested on a crime, and that phone helps build the case or a new crime can be proven by the cell phone (IE police trying to prove any of the 3 points I listed above, but find evidence of an additional crime), but if the police don't already have you arrested on something else, or have a warrant to search for specific evidence (and again it's not national security or life and death), then I think the police do not have a right to look at your cell phone.

Edited by El Chalupacabra, 09 March 2012 - 05:56 AM.


#23
Guest_Letsgo_7_7_*

Guest_Letsgo_7_7_*
  • Guests

I think there is a case to be made that searching cell phones without a warrant can, and in some cases, should be allowed. It really depends on the context of the search, though, but making a blanket statement that absolutely no searches of cell phones should be allowed or that any searches of cell phones erode personal freedom isn't necessarily correct.


This is what I was trying to get to above (in my long post, which admittedly, is pretty dense on the legalese), but in a more concise fashion this time- my problem (so far) with this case is that the Court isn't particularly clear on what is allowed and what isn't. All we know at this point is that looking in the phone for a phone number is ok. This problem is magnified by the fact that it's not clear that Robinson (again, the cigarette pack case this case relies on) had any limits to these types of searches at all, even though the Court says the Robinson court "implied" limits. I'm not sure that is the case, but I haven't read Robinson since law school, which was years ago.

So bottom line- at least for me at this point (and perhaps JM can help me here), I'm just confused on what the state of the law is after this case...

Thanks for informing me of the legal term of the instance in which I have a big problem with cell phone searches prior to arrest or establishment of legitimate and probable cause


Well- Chalup, I was just bringing up the Terry frisk as an example of when the police can conduct a search prior to any arrest (or even if there isn't any arrest at all).

In the case of a Terry frisk and cell phones, however, while I am not aware of any cases of such, I am pretty sure the police would not be able to do what you described. Terry frisks are very limited... go back to the wiki article and see what it says in the 3rd and 4th paragraph. To conduct the frisk, the police have to have reasonable suspicion that a crime is about to happen. And in the frisk itself, the only thing you can do is pat down for weapons. So what you're describing (a search prior to any arrest, without probable cause, of a cell phone on the person), would be unconstitutional unless you could find some other exception to the warrant requirement (like, as I mentioned, there are automobile exceptions, a consent exception, an airport exception, nd so on and so on).

Now, once you arrest a guy, the situation changes completely. Now we're in the realm of all the cases I mentioned above, such as Gant, Robinson, and the rules change significantly, because you can get a "search incident to arrest" exception to the warrant requirement.

#24
Evolence

Evolence

    Member

  • Members
  • 12,066 posts

To conduct the frisk, the police have to have reasonable suspicion that a crime is about to happen.


To me, the police have a "reasonable suspicion" that some sort of crime (however minor) is about to happen every time they turn on the blue lights. You know what...The more I think about this, the more I want to just say "**** the police." Okay...Crimes happen. So what? They're among a minority of the societal interactions. This is complete bull****. Maybe not from a court/Constitutional point of view...Just speaking personally. I'd rather let criminals get away (occasionally) than further empower our already-bold police state. **** the police. I'll say again...F-ck the police! I'd rather handicap the tyrants (police) than sacrifice personal liberty and our Constitutional rights. If that means that some "bad guys" occasionally get away because the pigs can't immediately search their cell phone without a warrant...Oh well, too f*cking bad. Sorry coppers, that's the price we pay to live in a FREE society. It means that you can't exert your tyrannical rights to harass and intimidate generally law-abiding citizens. Cry me a river.

#25
Guest_Letsgo_7_7_*

Guest_Letsgo_7_7_*
  • Guests

To me, the police have a "reasonable suspicion" that some sort of crime (however minor) is about to happen every time they turn on the blue lights. You know what...The more I think about this, the more I want to just say "**** the police."


That may be your opinion, but that is not the law, and furthermore, your opinion isn't based in reality. Unless, I suppose, you live in Obsidian's world, where apparently policemen act in a similar way to the Gestapo and thousands of people are beaten every day.

A "reasonable suspicion" is not simply a green light for police to make Terry frisks whenever they feel like it. Improper Terry frisks have been challenged in Court, and the defendants have won.

For example, in the case Florida v JL (http://www.law.corne...98-1993.ZO.html), decided in 2000, the Court ruled 9-0 that a Terry frisk was improper. In that case, police received an anonymous phone call that a black man at a bus stop had a gun, and so they went to go frisk him. The Court unanimously agreed (not a single conservative justice dissented) that simply receiving an anonymous tip with no corroborating evidence whatsoever was not sufficient basis for a "reasonable suspicion."

So, maybe in paranoid Evolence land, yes, policemen harrass people every step they take. But, in real life, when the police do this, it is held to be unconstitutional.



Reply to this topic