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    Online Community Director MissyJ's Avatar
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    Default Cellphone/smartphone searched without warrant?

    Supreme Court Will Consider Whether Police Need Warrants to Search Cellphones

    WASHINGTON ? The Supreme Court on Friday agreed to hear a pair of cases about whether the police need a warrant to search the cellphones of people they arrest, presenting a major test of the meaning of the Fourth Amendment in the digital age.


    The court has long allowed warrantless searches in connection with arrests, saying they are justified by the need to find weapons and to prevent the destruction of evidence. The question for the justices in the new cases is whether the potentially vast amounts of data held on smartphones warrant a different approach under the Fourth Amendment, which bars unreasonable searches.


    The lower courts are divided. In one of the cases the court agreed to hear, the federal appeals court in Boston in May threw out evidence gathered after the police there inspected the call log of a drug dealer?s rudimentary flip phone. ?Today, many Americans store their most personal ?papers? and ?effects? in electronic format, on a cellphone, carried on the person,? Judge Norman H. Stahl wrote for a divided three-judge panel of the court.


    ?That information is, by and large, of a highly personal nature: photographs, videos, written and audio messages (text, email, and voice mail), contacts, calendar appointments, web search and browsing history, purchases, and financial and medical records,? he added.


    When the full appeals court declined to rehear the case, Chief Judge Sandra L. Lynch said she hoped the justices would soon address the ?very important and very complex? questions presented by it. ?Only the Supreme Court can finally resolve these issues, and I hope it will,? she wrote.


    In urging the Supreme Court to hear the case, United States v. Wurie, No. 13-212, Solicitor General Donald B. Verrilli Jr. said courts have long endorsed inspection of anything carried by the people they arrest, including wallets, calendars, pocket diaries, address books and pagers.


    In February, a state appeals court in California applied the principles established in those cases to allow a search of a smartphone containing much more information than the one seized in Boston. That case arose from the arrest of David L. Riley, who was pulled over for having an expired auto registration. The police found loaded guns in the car and, on inspecting Mr. Riley?s smartphone, entries they associated with a street gang.


    A more comprehensive search of the phone led to information that linked Mr. Riley to a shooting. He was later convicted of attempted murder and sentenced to 15 years to life.


    His lawyers asked the Supreme Court to hear the case, Riley v. California, No. 13-132, to determine how the Fourth Amendment applies to a device ?that happens to include a phone? but is in essence a computer ?capable of storing a virtually limitless amount of information.? They argued that a warrant should be required ?before allowing the police to rummage through the digital contents of such a device.?


    In agreeing Friday to hear that case, the justices said they would decide a narrower question than the one proposed by Mr. Riley?s lawyers, that of whether evidence admitted at Mr. Riley?s trial was obtained by a search that violated his Fourth Amendment rights.
    Debate question: Do you believe that cellphones / smartphones should be treated similar to computers (i.e. search warrant required) or not expected to be covered by the 4th Amendment.

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    Quote Originally Posted by MissyJ View Post
    Supreme Court Will Consider Whether Police Need Warrants to Search Cellphones

    Debate question: Do you believe that cellphones / smartphones should be treated similar to computers (i.e. search warrant required) or not expected to be covered by the 4th Amendment.
    Search warrant required!
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    Posting Addict Spacers's Avatar
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    I'm torn on this one. Do you need a warrant to search what is essentially a small personal computer with telephone capability? You need a warrant to search a computer. You need a warrant to listen in on a landline phone. You do not need a warrant to listen in on your neighbor who stands outside to talk about his drug deals, and you don't need one to listen in on a cell phone because the radio frequencies are freely accessible to the general public so there is no right to privacy. The law has generally been pretty clear, that you have a right to privacy in your own home, therefore things in your home need a warrant to be searched, but if you take something outside of your home, then you make it publicly accessible & not subject to needing a warrant for search. And right now I don't see why a smartphone should be any different. It's the place that gives you protection from warrantless search, not the thing you have. That does feel kind of weird and I don't *like* it, but I think that's the only way the law can be interpreted.
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    Mega Poster mom3girls's Avatar
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    Quote Originally Posted by Spacers View Post
    I'm torn on this one. Do you need a warrant to search what is essentially a small personal computer with telephone capability? You need a warrant to search a computer. You need a warrant to listen in on a landline phone. You do not need a warrant to listen in on your neighbor who stands outside to talk about his drug deals, and you don't need one to listen in on a cell phone because the radio frequencies are freely accessible to the general public so there is no right to privacy. The law has generally been pretty clear, that you have a right to privacy in your own home, therefore things in your home need a warrant to be searched, but if you take something outside of your home, then you make it publicly accessible & not subject to needing a warrant for search. And right now I don't see why a smartphone should be any different. It's the place that gives you protection from warrantless search, not the thing you have. That does feel kind of weird and I don't *like* it, but I think that's the only way the law can be interpreted.
    Disagree with this. If police wanted to search my laptop while I was at an internet cafe, they would need a warrant even though they could easily hack into it if I was on the free wifi. I think they need a warrant for any of my personal property, regardless of where I am
    Lisa
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    Quote Originally Posted by Spacers View Post
    I'm torn on this one. Do you need a warrant to search what is essentially a small personal computer with telephone capability? You need a warrant to search a computer. You need a warrant to listen in on a landline phone. You do not need a warrant to listen in on your neighbor who stands outside to talk about his drug deals, and you don't need one to listen in on a cell phone because the radio frequencies are freely accessible to the general public so there is no right to privacy. The law has generally been pretty clear, that you have a right to privacy in your own home, therefore things in your home need a warrant to be searched, but if you take something outside of your home, then you make it publicly accessible & not subject to needing a warrant for search. And right now I don't see why a smartphone should be any different. It's the place that gives you protection from warrantless search, not the thing you have. That does feel kind of weird and I don't *like* it, but I think that's the only way the law can be interpreted.
    This isn't quite accurate. A reasonable expectation of privacy extends beyond your own home. If the cops pull you over for speeding and see drugs on the passenger seat, they will arrest you and not warrant issues. But if they want to search your trunk, they need a warrant or your permission. There are places where you have an unequivocal right to privacy. A bathroom stall, a dressing room, your doctor's exam room, etc.

    Depending on what it is/circumstances, it is either or both the place and what you have.

    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.
    If police truly think they are going to find something, they can easily obtain a warrant. Instead, searching cell phones seems more of a way of fishing.

    This very issue comes up at the beginning of each school year and periodically throughout the year. Whatever you have as your home screen/lock screen is fair game. You can't honestly expect that to be private because merely turning the phone on, checking the time, or whatever is going to reveal that to everyone. Other stuff, you truly do expect to be private. I have my banking information in my phone. Am I really waiving my rights to privacy because I have the mint app on my iphone? I have the ability to access my students' and their parents' information from my iphone. Is a parent really waiving their right to privacy because a LEO could search my phone and find it? The argument could be made that you have to have a user name and password to access this information about students. Correct. But you also need a password to access my phone in general.

    I think that is one of the things that really bothers me about the cases. The police went through the cell phones to find information about other people. They don't even have probable cause, again, they are just fishing.

    The 4th amendment was intended to protect the people's rights. And the idea of not needing a warrant to search every inch of my iphone is incredibly scary to me. It should be to everyone.

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    Prolific Poster ftmom's Avatar
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    I believe the way it works here, is if the phone is not locked, they do not need a warrant. There is no expectation of privacy if there is no pass word needed. If your device is open then anyone could pick it up and look at it. However, if it is locked they cannot search it without your permission or a warrant. Once they have a warrant the phone company will unlock your phone for them. They can however, keep your phone while they are in the process of getting a warrant, same as they can keep you out of your own house if they are in process of getting a warrant to search it, to prevent you from erasing things, etc.

    Disclaimer: This is my impression of how things work in the day to day, not necessarily how the law is worded.
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    Quote Originally Posted by ftmom View Post
    I believe the way it works here, is if the phone is not locked, they do not need a warrant. There is no expectation of privacy if there is no pass word needed. If your device is open then anyone could pick it up and look at it. However, if it is locked they cannot search it without your permission or a warrant. Once they have a warrant the phone company will unlock your phone for them. They can however, keep your phone while they are in the process of getting a warrant, same as they can keep you out of your own house if they are in process of getting a warrant to search it, to prevent you from erasing things, etc.

    Disclaimer: This is my impression of how things work in the day to day, not necessarily how the law is worded.
    I'm not sure how I feel about this. If I leave my front door unlocked, it isn't implied consent for someone to enter my home. I don't think it would be a compelling argument in court that the cops didn't need a warrant or permission to search my home because I left my door open. Even when if I invite LE into my home, it is not consent for them to search the house. Plain sight = fair game. Otherwise, get a warrant!

    My purse doesn't have a lock on it, yet I expect privacy regarding the contents. My camera (not the one on my phone) doesn't lock, but I expect privacy as to what is on it the sd card.

    It's one of those things that it wouldn't be that difficult to get a warrant if LE has reason to believe they will find evidence.

    Out of curiosity, if the cops seized my iphone, while waiting for a warrant, can someone else wipe it clean? Meaning, they log into my findmyiphone account and delete all contents. Is it recoverable if the cops get a warrant?

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    Prolific Poster ftmom's Avatar
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    Quote Originally Posted by ethanwinfield View Post
    I'm not sure how I feel about this. If I leave my front door unlocked, it isn't implied consent for someone to enter my home. I don't think it would be a compelling argument in court that the cops didn't need a warrant or permission to search my home because I left my door open. Even when if I invite LE into my home, it is not consent for them to search the house. Plain sight = fair game. Otherwise, get a warrant!

    My purse doesn't have a lock on it, yet I expect privacy regarding the contents. My camera (not the one on my phone) doesn't lock, but I expect privacy as to what is on it the sd card.

    It's one of those things that it wouldn't be that difficult to get a warrant if LE has reason to believe they will find evidence.

    Out of curiosity, if the cops seized my iphone, while waiting for a warrant, can someone else wipe it clean? Meaning, they log into my findmyiphone account and delete all contents. Is it recoverable if the cops get a warrant?
    Normally if they are holding your phone, they are also holding you, so I dont think that last comes into play very often. I would suspect it depends on the phone, etc.

    While I get what you are saying, I also know how hard it actually is to get a warrant. Not always in terms of proof, probable cause, but just the paperwork aspect. DH often complains of warrants coming back denied, and having no idea why. It could be lack of probable cause, or a paperwork error, and they wont tell them why. The whole system seems a bit broken honestly. And it is not a judge that grants warrants, it is a justice of the peace. They can later be thrown out by a judge, and often are. So what was the point of the warrant to begin with?

    Sorry, that was an aside, but totally bugs me My point is, that it is very time consuming to get a warrant, which in the long run means very little anyways. Regardless if they have a warrant or not, they have to show probable cause for searching anything when it goes to court. So they actually cant search ANYTHING, weather a warrant is required or not, without probably cause. ie, they cant just pull random people over and look through their cell phones. If they did, nothing would be admissible in court anyways.

    ETA: Thinking about your first part. No leaving your door open doesnt give consent to enter, but leaving your door open and then having blood on the floor, or screaming from the bedroom does (probable cause). Inviting LE in doesnt, but, again, if they were to see or hear something suspicious when they are there, it would give them cause to search.
    Last edited by ftmom; 01-21-2014 at 03:06 PM.
    Kyla
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    Posting Addict Spacers's Avatar
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    Quote Originally Posted by ethanwinfield View Post
    I think that is one of the things that really bothers me about the cases. The police went through the cell phones to find information about other people. They don't even have probable cause, again, they are just fishing.
    That's not how I read it. They looked at the cell phone to get more information about him, and found connections to a street gang and to a shooting. I have no problem with that. If you were walking around with a hard copy address book and personal diary, the police would be able to look through them when they arrest you. The fact that those things are now on an electronic device shouldn't change anything. People shouldn't be putting their entire lives onto a freaking smartphone anyway but that's probably a different debate.
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    Posting Addict Spacers's Avatar
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    Quote Originally Posted by ethanwinfield View Post
    This isn't quite accurate. A reasonable expectation of privacy extends beyond your own home. If the cops pull you over for speeding and see drugs on the passenger seat, they will arrest you and not warrant issues. But if they want to search your trunk, they need a warrant or your permission. There are places where you have an unequivocal right to privacy. A bathroom stall, a dressing room, your doctor's exam room, etc.
    Not necessarily. Those are places where you have privacy, but your stuff doesn't. If you leave it unattended, it's fair game. I had an employee once who was arrested, at work, after beating up his boyfriend, and the cops went into the changing room and got his backpack. Inside, they found drugs and he was charged with that in addition to the assault charge.
    70% of the U.S. population now lives in a state where same-sex marriage is legal. At 36 and counting!

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