Supreme Court Rules Cell Phones Can't Be Searched Without a Warrant 249
New submitter CarlThansk (3713681) writes The courts have long debated on if cell phones can be searched during an arrest without a warrant. Today, the Supreme Court unanimously ruled that the police need warrants to search the cellphones of people they arrest. "Chief Justice John G. Roberts Jr., writing for the court, said the vast amount of data contained on modern cellphones must be protected (PDF) from routine inspection."
Phones may still be searched under limited circumstances (imminent threats), but this looks like a clear win for privacy. Quoting the decision: "We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost."
unanimously? (Score:2, Funny)
Who is this imposter pretending to be Clarence Thomas?
Re:unanimously? (Score:4, Insightful)
They all own cell phones or their kids do. (Score:2)
This shockingly sane unanimous ruling must be a result of their experience with smart phones. Some might not mind trashing the constitution or nation but when that could involve THEMSELVES... that is another matter.
Imminent Threat (Score:3)
However, any genuine "imminent threat" from a cell phone would be an extremely -- and I mean very extremely -- rare circumstance.
(Note for citizens: this is not a good reason to not lock your phone. Police have been known to bend the rules. I would like to see that change, but today you should be careful.)
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Off the top of my head, I can only imagine a situation where a phone is strongly suspected to contain information relating to a kidnapping, bombing, etc where the information may lead to the rescue of a victim or victims. In other cases they can collect the phone while they wait for a warrant from a judge.
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Off the top of my head, I can only imagine a situation where a phone is strongly suspected to contain information relating to a kidnapping, bombing, etc where the information may lead to the rescue of a victim or victims. In other cases they can collect the phone while they wait for a warrant from a judge.
IANAL, but I believe what you are referring to is Exigent Circumstances [wikipedia.org] rather than Imminent Threat.
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I think the Imminent Threat refers to the body searches that police do to determine that suspects have no weapons on their person when arrested.
My point exactly. GP said:
GP's example would be Exigent Circumstances and not Imminent Threat, IMHO.
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The term "imminent threat" like everything else as it relates to matters of law is as fluid and malleable as the entity wielding the power wants it to be.
Not really. We have the concept of stare decisis which largely prevents that from happening, except perhaps temporarily.
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except perhaps temporarily.
Which is precisely the point. When you're on the receiving end of extrajudicial treatment, I'm sure you'll find great comfort in "stare decisis".
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Which is precisely the point. When you're on the receiving end of extrajudicial treatment, I'm sure you'll find great comfort in "stare decisis".
Again I say, "Not Really".
I mean, yes these things do happen. But in most cases you will probably eventually get relief. It is this fear of repercussion which usually prevents administrations from grossly abusing their power, even temporarily.
Of course, that hasn't stopped Obama and his cronies. But personally, I could this as the worst administration in history.
And I'm looking forward to America getting even.
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Re:Imminent Threat (Score:5, Informative)
The ruling actually spells it out "imminent threat" as a physical threat.
Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape. Law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon—say, to determine whether there is a razor blade hidden between the phone and its case. Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one.
Moot point (Score:2, Insightful)
The NSA, FBI and local cops are well beyond caring about what the courts or Congress thinks. If our legal system had any teeth in it, this might be different. But if all the courts are going to do is say, "We have ruled. Fail to comply and we will issue another ruling." the cops are just going to ROTFL.
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They'll just go ahead and search your phone anyway, by whatever means they have. They won't be able to submit what they find as evidence . . . until they get a search warrant afterwards.
They can still use anything they find as part of their investigations . . . to get other evidence by legal means, which they then can submit to a judge for a warrant.
Re:Moot point (Score:5, Insightful)
Or, they'll go with their new favorite toy ... illegally search your phone, and then go through the bullshit of parallel construction.
And then it would be "we got an anonymous tip, and confirmed it when we checked his cell phone", which will be used to cover up "we illegally searched his phone, and then called in our own tip".
And none of them will be charged with perjury or obstruction of justice.
Until we start seeing police officers charged and jailed for this crap, they'll keep doing it.
The police have become little better than those in banana republics where you have to assume they're all corrupt, because there's enough of them to make assuming the one you've got now is honest is a bad idea.
Double speak (Score:5, Interesting)
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In those cases, the information (since it was gained as part of an intel and not LEO operation) would not be admissible.
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As far as we know at this time, subject to further revelations/leaks which may challenge this, FBI, NSA, etc. are searching communications, not data stored on cellphones.
FTFY
Strat
Does this apply to the TSA? (Score:2)
Does this apply to the TSA who regularly searches laptops and cell phones?
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I would think that it should since the ruling should since the Supreme Court said the police could search the device for physical threats but not the data on the device. So the TSA could make sure that your laptop wasn't somehow hiding a knife but couldn't look through your computer to see who you e-mailed recently. Of course, this is in theory. Applying it in practice is another matter. You can point out Supreme Court rulings until you are blue in the face and the TSA will force you to decide between 1
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Re:Does this apply to the TSA? (Score:4, Informative)
Yup, he/she is, and no, it won't apply, since screening at the border is a different animal.
Great (Score:3)
Now if we can just add language to somehow apply this to apps...
A commercial entity being allowed to download all of the info out of my smart phone makes me no less comfortable than the government doing it. Especially when it's through a trojan horse such as Candy Crush or Angry Birds.
This is the only reason I root my Android. If reasonable restrictions were in place, I wouldn't need to. But until the advertising giant and information harvester that writes the OS has a change of heart, I will continue to restrict said access through any means necessary.
Well unless... (Score:5, Interesting)
This is great unless you're one of the 2/3 of people that live within 100 miles of the border in a "constitution exempt" zone.
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Isn't the entire USA a "Constitutional Exempt Zone"?
It sure feels that way.
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Nope. This applies to police searches after arrests. Anywhere in the United States. Period.
Only customs agents have the ability to conduct warrantless searches and only at ports of entry. These ports of entry are at either airports or at the border.
Customs can also establish stations for immigration control up to 100 miles from the border, and stop and question vehicle occupants at these locations. HOWEVER any searches at these internal spots must follow the normal constitutional rules. The only 4th amendme
Re:Well unless... (Score:5, Insightful)
Perhaps you haven't been paying attention, but they can conduct a border search [wikipedia.org] up to 100 miles from the border [rt.com], with no probable cause or justification (or a warrant).
Government keeps making exceptions and saying "well, that doesn't apply here".
In this specific case, you can completely ignore the intent of the 4th amendment by saying "border search".
And, since about two thirds of US citizens are in this zone, most Americans can be searched in a way which would otherwise be illegal, but defended under a horseshit exemption.
This is what is referred to as the area which is now magically exempt from the Constitution. Because we can search anybody, for any reason, and bypass your Constitutional protections.
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Uh no. From your citation:
Despite federal law allowing certain federal agents to conduct suspicionless search and seizures within 100 miles of the border, the Supreme Court has clearly and repeatedly confirmed that the border search exception applies only at international borders and their functional equivalent (such as international airports).
Bet (Score:2)
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It would take a Constitutional amendment, not just a law.
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I'll take it, proviso that if SCOTUS strikes the law down as unconstitutional in less than 5 year... make that 10 ye... How long has the USA PATRIOT Act been around?
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Unless the draft and amendment to the US Constitution and have the states ratify it. No I can't see them doing this. Of course in the future, the SCOTUS may review another case about some guy who was convicted on what they found on his phone without a warrant yada yada yada..
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Alito voted against the cops? (Score:5, Interesting)
During his confirmation hearings, Ted Kennedy noted that Sam Alito "never saw a police search he didn't like."
Alito wrote up his own opinion on this decision, not-quite agreeing with the rest of the bench, but still voting against this particular search. I guess there's a first for everything.
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"Privacy comes at a cost" (Score:2)
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Heaven knows how to put a proper price upon its goods; and it would be strange indeed if so celestial an article as freedom should not be highly rated.
- Thomas Paine, The American Crisis
They left a hole (Score:2)
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And, of course, it's always possible for a remote wipe, so you'd better search them all just in case.
Problem solved. Law, what law?
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You really oughta read the TFD (The F'ing Decision). This issue was specifically mentioned, and there is no loophole:
"In any event, as to remote wiping, law enforcement is not without specific means to address the threat. Remote wiping can be fully prevented by disconnecting a phone from the network. There are at least two simple ways to do this: First, law enforcement officers can turn the phone off or remove its battery. Second, if they are concerned about encryption or other potential problems, they can
BREAKING NEWS! (Score:2)
US and Canada but not UK EU (Score:3)
In various rulings, the net result is the cops (FBI, NSA, SEC, State, County, Local) may not search your phone without a specific individual warrant.
But the NSA is permitted to back collect the information from anyone you ever played a game with on Facebook, including their own avatars they created to "live" overseas to get around this data collection restriction. They also have ones inside WoW and other games like WildFire.
Then they claim the information is "externally collected" and use it anyway.
The UK EU Australia govts do the same thing to their citizens using our data collecting (illegal under data treaties) on them.
Any questions?
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You'll also have to prove that the NSA actually searched your phone.
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There's a danger here though, and that is the existence extraordinary-rendition loophole that allows for people to be taken and held. It's bad enough to be taken to Cuba, but there are other places that are much further off-the-radar where one could be taken without any recourse at all, and worry is that if an agency decides that someone is bad, if the courts won't let them arrest them and char
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Tell that to people in Gitmo, etc., who have NEVER been to court after how many years? Slap on the words 'terrorism' or 'national security' and you'll be lucky if you ever get your day in court.
Re:Not in USA (Score:5, Insightful)
Let 'em listen. As long as what they hear can't be used in court, that's 99% of the battle for 99% of the cases.
Then they came for the other 1%, and I did not speak out because I was not part of the other 1% ...
Re:Not in USA (Score:5, Informative)
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The average local police officer isn't getting a FISA warrant, but will instead have to convince a judge that there's probable cause to check out the contents, and will have to tell the judge what they're looking for. Obviously, if there is probable cause, the police should get the search warrant. This decision looks sensible to me. It may be that judges are too free in issuing search warrants, but that's a separate issue. (So's the NSA.)
Not interested in crime (Score:3)
The NSA isn't trying to convict in a court of law. What's admissible matters less to them.
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True, but only half the story. More true is to say that surveillance activities are already beyond the review of courts by the loophole known as parallel construction.
Quite simply it doesn't matter to them, because they will never even admit that is where it came from, they will simply use what they now know to set up a fiction that can be supplied to the court. Kind of like a manufactured alibi except in reverse.
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unless they can search his cell phone while he is still driving, there can't be any imminent threat as the threat has been neutralized the moment the driver stopped his vehicle and surrendered to roadside interrogation. There could be other 'word trickery' employed about other things though. Using the patriot act to go after regular criminals is a good example of more police required to police said police.
Re:So they'll just add (Score:5, Insightful)
More police just adds more layers in which they can game the system.
What needs to happen is a permanent recording of all interactions with people so they can't just get together and decide what their story will be.
We need to fix the system so that it has an inherent "we can't just take you at your word" element in it. Because time after time the police have demonstrated they neither know, nor care about, the actual law.
Sure, many of them may be honest. But if we just assume that enough of them aren't, and set up a system which shows what really happened ... then maybe we might be better off.
I have lost count of the number of times I've seen stories in which the police collectively say "this is what happened", and when someone's cell phone video comes up they're proven to have been lying. And then their own internal review boards clear them of any wrong doing.
There needs to be more serious penalties for when police flout the law. And there needs to be more capturing of what actually happened, because when they do flout the law, the band together to hide that fact.
Increasingly, I think we need to apply the same thing to government. Because we can't trust them to follow the law either.
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Simple solution: Require every uniformed officer to wear a Go-Pro (or similar device) with very VERY strict guidelines and harsh punishment for data that "just happens to go missing."
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Hopefully, everybody. Make the information public. Livestream it to the interwebs. Have citizen groups review it. Make review of the content mandatory if there is any dispute. If the police 'accidentally' turned them off or made sure they could't see anything .. throw out the case.
Do anything which opens the process and prevents abuse.
The cops will complain about their privacy and their rights, but using that to ignore ours is not what I'd call a good excuse.
Trusting them blindly clearly isn't working.
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Eventually, citizens will record everything, and what you are suggesting is going to pass.
If the government can record anywhere, we the people should be recording anywhere.
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Unless it would violate copyright.
And I wouldn't put it past them to say all actions of police and government are copyright, and therefore can't be recorded by you.
They'll always find a way to skirt around this if you let them.
Re:So they'll just add (Score:4, Insightful)
The problem is a cop does not consider him/herself to be a citizen. They are cops, we are citizens. It's an "us vs them" mentality in which the cops are a privileged class of people who think they are the law and sometimes pretend they are above it. That mentality also leads them to form tight bonds in which they will cover for each other and outright lie about anything to keep their jobs and freedoms. And internal panels for review are just as bad often letting cops off the hook for perjury, assault and outright murder with little more than a slap on the wrist.
If you ask me law enforcement should retrain itself (pipe dream, I know but hopefully not) to see itself as citizens who are tasked with enforcing the law. They are not the law, they are not above it and they are subject to the very law they help enforce as everyone else is. They simply have a job to do though it is a very important one.
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Facts don't support your contention r.e. cameras exonerating the cops.
That has been true. When the cops have off buttons.
However the first trail of officer 'always on' cameras resulted in a 60% reduction in officer involved violence before they told anybody but the cops the cameras were on. Think about that; 60% reduction in ass beatings. Only the cops knew they were on camera.
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Re:So they'll just add (Score:5, Informative)
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Thank you, I wasn't sure what they meant by the imminent threat.
We had the same ruling up here in Canada, although you do have to lock your phone with a password. It requires a specific type of warrant, not a general warrant.
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Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape. Law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon—say, to determine whether there is a razor blade hidden between the phone and its case. Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one.
And sorry about the errors of type and spelling in my OP.
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That's essentially an extension of stop-and-frisk, which holds they can search you sans warrant to look for weapons or other items that may pose a danger to the officer. Other contraband discovered in the course of this search may be admissible, if the nature of such contraband was "readily apparent" to the officer, but it's not supposed to be license to go fishing.
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Then there would be an imminent threat of death for the victim, allowing cops to search the phone for recent calls.
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That is not an imminent threat to the officers, it is to the victim. they are only allowed to search, even before this ruling, if it is an imminent threat to the officers. You dont get to violate the 4th amendment just in case there is something happening to someone else.
Google "exigent circumstances."
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I believe that's where they perform a special ritual (requires 2 cops for best effect.
Cop1: "Did you hear that? What was it?"
Cop2: "I think it's an email screaming for help! We better do a welfare check!"
Imminent Threat (Score:2)
IMHO and IANAL, an imminent threat where they would need to search the phone would be if the phone contained info on a bomb about to go off or info on an abduction where the abducted person is expected to be killed or harmed. Having drugs on the suspect or a suspect speeding is not an imminent threat.
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They state in the opinion that you can search a phone for psychical threats such as a bomb or a blade hidden in the case, but data on a phone is not an imminent threat, it is just data.
So my case with the built in rocket launcher is still fair game to them? That sucks!
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thaylin said:
according to the ruling, which I have read most of, you would have to prove the data on the phone would be an imminent threat, which is impossible to do
Here's what will go down:
We had a "reasonable" suspicion that data on this phone would reveal plans for heinous crime to be carried out imminently, your Honor...
And the judge will allow the search and seizure.
Folks, illegally obtained evidence is allowed after the illegal search all the time . It is *VERY* rare for a judge to throw out evidence that was illegally obtained.
Re:So they'll just add (Score:4, Insightful)
You're almost certainly right that they'll try it, but that's not what it means here. "Imminent" means "in the near future", and the idea is that cops would like to know if you just texted all your buddies to "come to the corner of 5th and Ghetto to kill the pigs arresting you". I can certainly see why police would like to know that and have a legitimate reason to.
However, there's no way to ask a phone (slash-camera slash-Rolodex (SCOTUS's words!)), "hey, can you give me just the information I need to know in the next 5 minutes and keep everything else safe for its owner?". Cops could use that as an excuse to get into your phone, and hey, since I'm already in here, let's see what this little miscreant was posting on Facebook... SCOTUS ruled that this is a flimsy excuse that doesn't justify the privacy abuses that police had committed, and so dismissed it explicitly as not being sufficient cause to invade your personal information repo.
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The driver was an imminent threat to the general prublic by driving with undue care and attention or by operrerating an usafe vehicle (Ie burn tout head light, tail light, etc...).
No. That doesn't make sense.
However, they will still abuse citizens by simply claiming they had probable cause to search the phone. Just like they can pull you over, bring in a dog for no reason, claim the dog "alerted" on your car and then search it anyway. It's just a matter of a few DA's to come up with something that will pass some friendly judges scrutiny, do it a few times and only bring those cases to those friendly judges to avoid getting an unfavorable ruling... then later start using it on everyon
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Think about DUI checkpoints. Clearly unconstitutional
Says who? The precedent [wikipedia.org] suggests otherwise. I don't really care for the concept myself, but I can recognize a compelling state interest [wikipedia.org] when I see one. You're perfectly free to respond to every single question asked at a checkpoint with "I don't talk to the police, may I leave now?" and there's not a damned thing they can do about it, unless of course you're under the influence.....
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What don't you believe? That SCOTUS made a good decision for once? Or that you missed First Post by that much?
Re:FP (Score:4, Insightful)
no problemo. they will just buy the self-same info from facebook or amazon and it's "affiliates" (anyone with money).
Re:FP (Score:5, Insightful)
I kind of do.
It's pretty obvious that the data on cell phones is "papers" from the fourth amendment, and the phones themselves are "effects".
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Obvious, except to the government lawyers and/or attorneys general who issue the guidance which says "nah, we can do anything we want".
Because they've been arguing that this isn't your "papers and effects", and therefore they could whatever they pleased.
Because government and law enforcement have mostly been focusing on how to ignore the Constitution and claim it doesn't apply.
It's
Re:FP (Score:5, Funny)
However, in this case, the Supreme Court was 8-1, and the opinion amounted to "WTF is wrong with you? Of course you need a warrant, asshat!"
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It is common sense obvious. It is not common law obvious. Previous rulings on cell phones extended the findings for pagers, and the finding for pagers was that they were a container of information, like an address book, which can be searched like any other container during a stop or arrest.
There was obviously strain between previous rulings and reality, but that doesn't mean with any certainty that it was going to be corrected today by the Supreme Court. The court could have even further extended the previo
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What about the Cloud? The great workaround to constitution in the digital age?
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Now all the US needs is a similar commonsense approach at border crossings.
You're assuming our government wants to fix the problem. They don't. The border issue is good for everyone involved with the exception of the immigrants.
Business leaders get nearly slave labor. People can't report illegal activity protest poor conditions.
Democrats get to pretend to fight for the little guy. They offer amnesty because they know it will kill the issue, continuing the problem and giving them more political capital because they're seen as doing the right thing... even though they aren't doing a
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Now all the US needs is a similar commonsense approach at border crossings.
You're assuming our government wants to fix the problem. They don't. The border issue is good for everyone involved with the exception of the immigrants.
Umm .. you do know that I am talking about the confiscation and inspection of electronics in your possession as you legally cross a border into the US?
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SCOTUS has already ruled Customs can search anything it pleases at the border including electronic devices because one of the fundamental powers of a sovereign is to protect its borders.
So that's up to Congress. Which means anything common sense is right out.
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That's not the right use. of "Freedom isn't Free" [wikipedia.org]
"Freedom Is Not Free" was first coined by retired U.S. Air Force Colonel, Walter Hitchcock, of New Mexico Military Institute. The idiom expresses gratitude for the service of members of the military, implicitly stating that the freedoms enjoyed by many citizens in many democracies are only possible through the risks taken and sacrifices made by those in the military, drafted or not. The saying is often used to convey respect specifically to those who gave their lives in defense of freedom.
2d4 + flip a coin (Score:2)
It's pretty obvious the method for deciding cases at this point.
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The TSA can never force you to give them your password (or copy data from your phone for the matter). CBP (Customs and Border Protection) always could and still can. Know your acronyms and rights folks, it can be very useful.
It obviously doesnt cover lying by law enforcement. But that is already a crime.
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Do read https://www.eff.org/wp/defendi... [eff.org] . ICE and CBP do have the authority to detain you or refuse entry into the country (for non-US citizens), or detain your devices (the last one happens often), if you refuse to give them the password.
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That is the exact argument that justifies a police state. Do you want a society where you can be searched at any time by the police to see if you're guilty of a crime, even when they do not have reasonable suspicion of you committing a crime? You, your parents, your friends, and everyone you know will always be treated as though you're guilty of something, and the police's job is just finding out what that something is.
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