Police Seek Warrantless Searches of Smartphones

CNET has a preview of a case argued yesterday morning that could eventually decide the issue of whether police need to secure a warrant before searching an arestee's iPhone. From the story:

When Christian Taylor stopped by the Sprint store in Daly City, Calif., last November, he was planning to buy around 30 BlackBerry handhelds.

But a Sprint employee on the lookout for fraud grew suspicious about the address and other details relating to Taylor's company, "Hype Univercity," and called the police. Taylor was arrested on charges of felony identity fraud, his car was impounded, and his iPhone was confiscated and searched by police without a warrant.

A San Mateo County judge is scheduled to hear testimony on Thursday morning in this case, which could set new ground rules for when police can conduct warrantless searches of iPhones, laptops, and similarly capacious electronic gadgets.

This is an important legal question that remains unresolved: as our gadgets store more and more information about us, including our appointments, correspondence, and personal photos and videos, what rules should police investigators be required to follow? The Obama administration and many local prosecutors' answer is that warrantless searches are perfectly constitutional during arrests. …

Privacy advocates say that long-standing legal rules allowing police to search suspects during an arrest--including looking through their wallets and pockets--should not apply to smartphones because the amount of material they store is so much greater and the risks of intrusive searches are so much higher.

One of the disputes in the case is whether or not the phone was password protected—Taylor's lawyer claims it was, while prosecutors deny it. The prosecutor conceded that if the phone had been password protected, the police would have needed a warrant to search it.

For a Reason interview with Electronic Frontier Foundation founder (and Grateful Dead lyricist) John Perry Barlow, see "John Perry Barlow 2.0" from the August/September 2004 issue.

Comments

[John]

Lets rape the "search incident to arrest" concept just one more time. It would be great if the court said no. But if they do it will be the first time they have ever bothered to limit that poor bastardized concept. So I wouldn't get my hopes up.

[Tim]

Searches need to be legal so that the police can protect us. The only people who should be exempt from these searches are people above reproach-like congressmen, lawyers and the girlfriends of police officers.

[Bronwyn]

You can say that again.

[Tim]

Searches need to be legal so that the police can protect us. The only people who should be exempt from these searches are people above reproach-like congressmen, lawyers and the girlfriends of police officers.

[ed]

Every so often I try to justify to myself why I still haven't bought a smartphone (or even a dumbphone, if they still sell those things). Thanks, Reason!

[ed]

NEWS ALERT!

America's most famous half-black entertainer who isn't the president is about to make a speech!

[Episiarch]

Taylor was arrested on charges of felony identity fraud, his car was impounded, and his iPhone was confiscated and searched by police without a warrant.

Because he wanted to buy 30 fucking phones?!? There's nothing wrong with a Sprint employee being cautious about identity fraud, but what evidence did they have to arrest this guy? God damn I fucking hate the cops.

Keep in mind that I don't have time to RTFA so if there was good reason, well, fuck you.

[toxic]

You need to relax. Perhaps the credit card he tried to use to buy the phones was, you know, fraudulent? Maybe?

Jump to Conclusions is a really boring game to watch other people play.

[Episiarch]

What part of my second paragraph was too difficult for you to understand?

COMPREHENSHUN IZ HARD

[John Thacker]

Keep in mind toxic didn't have time to read your second paragraph, so if you made an excuse for jumping to conclusions, well, fuck you.

[toxic]

I read the second paragraph. That's where you jump to a conclusion. Is there another second paragraph? Oh, I guess you mean the third one. The fact you know you're jumping to conclusions doesn't really justify venting at the fucking cops, as if you had a, you know, reason to do it. Don't really see how that changes anything. Assholes that know they are assholes are still assholes. They might even be bigger assholes.

[Episiarch]

How big is your asshole, toxic? Just wondering. I'm guessing it's HUGE.

[Steve Martin]

Are you feeling the love? I'm feeling it.

[STEVE SMITH]

STEVE SMITH TOO FEEL LOVE OF TOXIC HUGE ASSHOLE

[John]

I might be wrong, but I seriously doubt Sprint makes it a habit of having their customers arrested. If he had a non-criminal explanation for buying 30 cellphones, like he was running a business, I doubt the police would have been called.

I would bet dollars to doughnuts this guy is a dirtbag. But, that doesn't give the police the right to search his phone.

[PapayaSF]

For a business called "Hype Univercity"? He deserved to be arrested for that name alone.

[John Tagliaferro]

FTFA,

Meanwhile, Taylor's business seems to be languishing. The HypeUOnline.com blog, created after his arrest, features only three test posts. And the linked Twitter account features only a series of messages titled "2,218 New Followers Within 7 Days" and "Make Money On Twitter" that include links to a non-existent Web page. (Prosecutors say Taylor has prior convictions for forgery, fraud, and identity theft.)

Closest I found to anything they had to continue past initial call. The assertion by prosecutors needs to be verified independently. They are known to make stuff up like that too and nothing happens to them.

I am with you that the Sprint employee would rather make a sale than call the cops, we just don't have enough from the article to know what was going on.

[John]

Agreed. Maybe he is not a dirtbag. It would be nice if the the reporter would actually do his job and give the relevant facts.

[John Tagliaferro]

I am still leaning dirtbag. Maybe bad phrasing on my part there. I go with don't trust, verify, when it comes to the cops and prosecutors.

[John Tagliaferro]

Declan McCullagh used to cover his stories better than this.

[AlmightyJB]

Who needs a warrent?

Schools spied on kids through laptops, suit says:

http://www.dispatch.com/live/c.....GKP3T.html

[Mango Punch]

Pretty crazy if true... some people should definitely go to jail for that one.

[Abdul]

Lower Merion School Administrator:

"Please be a cheerleader sexting, please be a cheerleader, please...

Damn, another band geek waxing the saxaphone!"

[yojimbo]

I new some really hot band geeks.

[yojimbo]

wow *knew*

[Mango Punch]

No Hat Tip to Mango Punch for putting this in yesterday's morning links thread??

[FrBunny]

Interns don't learn how to hat-tip until week six. The first five weeks are all about how to properly wax The Jacket.

[SugarFree]

how to properly wax The Jacket

There's a hideous euphemism.

[FrBunny]

Let's just say they still call it the Jeff Winkler Method.

[jasno]

Was that supposed to be a Fonz reference? If not, I don't get it.

[Randolph Carter]

Epi - he was probably signing up for 30 2-year service contracts using a fake name and address, i.e. trying to get 30 handsets worth about 550 bucks retail a piece without paying for them i.e. stealing them.

[Reason Team (not really)]

Posted on February 19, 2010, 10:36AM | Ben Sanders

BEN! Where's my fucking chi tea?!?

[Steve Chaos]

Genuine question: how does the scenario change if you replace "smartphone on his person" with "briefcase?" (Does it matter if the briefcase locks?)

I ask because it provokes a genuinely interesting question about how we set out the bounds of constitutional search upon arrest.

[John Thacker]

Generally they can search someone on arrest because the suspect may have a weapon or some such on him. A briefcase may contain a weapon or be a bomb.

Hell, I suppose that they could argue that the smartphone could be a bomb, but there's a lot of difference between searching his body and confiscating the phone, and going through it to read his emails.

[Steve Chaos]

But I assume the same logic plays through with the briefcase, too. Sure they can open it to search for a weapon, but reading through his papers for incriminating evidence seems to go a bit further.

Do standard rules of evidence require a warrant, here? i.e., what parallels can we draw from the existing case law with dead trees in a physical container versus electronic "papers?"

[John Thacker]

Do standard rules of evidence require a warrant, here?

Standard rules of evidence also allow them to glance at the papers to see if they're evidence connected to the just-arrested crime.

The two exceptions are:
1) Weapon
2) Evidence related to the just-arrested crime. (If arrested for drugs, can search for drugs, etc.)

There's also a "once you've seen it, you can't unsee it" rule going on (provided you were allowed to open it in the first place).

[John Thacker]

Also, they're allowed to search when arresting in order to make a catalog of what the arrestee had on him. This is partially so that the arrestee can't claim that his papers, or 16th century French goblet, or whatever he was supposedly carrying is missing.

[John Thacker]

The other typical excuse, besides a weapon, is that it could contain evidence that could be destroyed if not immediately confiscated. And once a briefcase is confiscated, it could be a bomb, so they can search it to make sure it isn't.

[Untermensch]

I'm guessing from the description that they had sufficient evidentiary basis that they could have gotten a warrant anyway. It speaks miles about their attitude that they feel that they don't need a warrant.

[John]

They could hold it until they get a warrant. But that would require them doing some work. Much better just to mangle existing legal theory and the Constitution and do it the easy way.

[Nick]

That's my theory, too, but it really shows how stupid they are since you could lose your case if the defendant challenges the legality of the search. I guess that's the prosecutors problem, huh? And since they have no problem withholding exculpatory evidence then why bother getting warrants, right?

[John]

Pretty much. But that is what an industrial scale criminal justice bureaucracy will get you.

[John Thacker]

So I'd like to see Arizona v. Gant as the starting point in the discussion.

I'd be okay with searching him to find the phone and confiscating the phone, but not searching the phone itself without a warrant.

[JOhnny MAckson]

Pretty scary dude. No doubt we are in a police state!

Jess
http://www.anonymous-tools.se.tc

[T]

Refresh my memory. Why, exactly, should I presume any state agent or actor is legitimate?

[P Brooks]

"Reasonable expectation of privacy?" What are you, some sort of Islamofascist homicide bomber?

[Wicks Cherrycoke]

Let me see...the cops say you do not need a warrant to search a smartphone.

This wouldn't be the same cops who claim that the municipalities who employ them need a warrant to "search" the smartphones that the municipalities provide them for use in connection with their police work? They couldn't be THAT hypocritical, could they? Surely they aren't asking for a double standard??

[P Brooks]

I realize I'm hopelessly naive, but- if the SUSPECTED criminal has a briefcase which may or may not contain some sort of weapon, why not just make it inaccessible to him, WITHOUT OPENING IT AND RIFLING THROUGH THE CONTENTS at least until it has been shown that a crime has been committed/ attempted?

[John]

That is what you would think. But, the courts took the concepts of "protective sweep" and "search incident to arrest" and "lessened expectation of privacy in a car" and used them to destroy much of the 4th Amendment. Once the cop gets a hold of you, all your bases belong to him.

[John Thacker]

Because it could, under some hugely unlikely movie scenario, contain an active and incredibly powerful bomb that will go off some time after they take it from you and blow up the police station, probably killing lots of women and children.

[fez]

Maybe they are looking for Che apps on the iphone.

[R C Dean]

C'mon, guys. How are you going plant child porn on smartphone without "searching" it?

[Really Bad Troll]

I don't see what the big deal is. If you're not doing anything illegal, you should have nothing to hide, so what does it matter if the police take a look through your stuff? They need to be able to do their job and protect the public.

[John Tagliaferro]

Some professor quotes in the article shares your view. Said something about if it's okay to look through your paper scheduler why not your phone version.

[Paul]

Encryption and passwords are your friends.

[John Tagliaferro]

From the article, iPhone apparently has an easy way to bypass password protection.

[hurly buehrle]

I'm not sure this is true for smartphones. If you could use something like TrueCrypt with phone OS's, that'd be one thing. But as far as I know there's no way to seriously encrypt the contents of a phone. And yes, the passwords are easily hacked.

[Rich]

if the phone had been password protected, the police would have needed a warrant to search it

1) "Nope, the password is *not* 'Just give me the fucking phone!'."

2) "It *was* password protected before you searched it!"

[Tulpa]

Privacy advocates say that long-standing legal rules allowing police to search suspects during an arrest--including looking through their wallets and pockets--should not apply to smartphones because the amount of material they store is so much greater and the risks of intrusive searches are so much higher.

Maybe you shouldn't be walking around in public with it then. There are far nastier folks in the, er, private sector, who you don't want to get their hands on that information either.

[M]

Ohio Supremes just hit this exact issue. And got it right.

http://www.sconet.state.oh.us/.....o-6426.pdf

[R C Dean]

I guess Ohio can look forward to a tsunami of crime, then.

[Shannon Love]

You can't bypass the iPhone password without external software. Any operations conducted on electronic devices are supposed to be in the chain of evidence for obvious reasons. Violating chain of evidence is something cops take seriously because its something the courts use to keep them honest.

All interations with the device leave fingerprints that foresic programmers can recover so anyone smart enough to crack the device would know they were taking a career ending risk just to catch a small time scam artist.

There is also the fact that a person convicted of fraud who was in fact rather obviously engaged in a fraud, is not a credible witness.

I would also point out that the Electronic Frontier Foundation is easily duped and they have on occasion outright lied. They're not reliable in many cases.

[Coeus]

I would also point out that the Electronic Frontier Foundation is easily duped and they have on occasion outright lied.

Please elaborate. I haven't heard this before. I've always considered them some of the good guys.

[TrickyVic]

""All interations with the device leave fingerprints that foresic programmers can recover so anyone smart enough to crack the device would know they were taking a career ending risk just to catch a small time scam artist.""

Sort of like faking bite marks on a dead person and presenting that as evidence at a trial is career ending risk?

""There is also the fact that a person convicted of fraud who was in fact rather obviously engaged in a fraud, is not a credible witness.""

Yet Mr. Haynes helped secure convictions based on fraud, yet Mississippi wants him back.

LEOs and those who help convict often get a pass. For them, it's not that much of a risk.

[Nike Dunk High]

thanks