Ca. Cops Can Now Search Your Phone Without Warrant..

[Rabbi Dali Rick]

It is now the law. In Calif a police officer can now rummage through your phone, data pad or other electronic device without the need of a warrant, just like they can look through your pants pocket, or purse.

http://redtape.msnbc.com/2011/01/court- ... rrant.html

So, goes more of our personal freedoms.

the rebbi

[Elderberry]

I'm betting this will be appealed all the way the the US Supreme Court. This is clearly a 4th amendment violation.

JK

[Rabbi Dali Rick]

Maybe, but for now, IT'S THE LAW.


The debate now is the cop also allowed to beat your password out of you...

the rebbi

[Trishntek]

I haven't seen the law, but it would seem there would have to be reasonable cause. I cannot see that information pertinent to asking for license, registration and insurance kind of scenario. Just think of information you have on your phone that is confidential about OTHER people. It would seem a compound rights issue beyond the possessor of the phone.

I must admit it doesn't surprise me. Individual rights are under attack like never before in my experience.

[ygmir]

I bet, it has to do with time lines..........
like, if the cop pulls you over, for talking on your phone while driving, his dash cam would show time. Then, he could check your phone, to see what time you were on it.

Also, accidents........seeing if the phone was working at the time.

I disagree if it's wide sweeping.
I could, though, see it in those cases, being good for accuracy.
It would also prove you innocent, if you were really not talking.

[JStep]

I bet, it has to do with time lines..........
like, if the cop pulls you over, for talking on your phone while driving, his dash cam would show time. Then, he could check your phone, to see what time you were on it.

Also, accidents........seeing if the phone was working at the time.

I disagree if it's wide sweeping.
I could, though, see it in those cases, being good for accuracy.
It would also prove you innocent, if you were really not talking.

That's what the subpoena process is for. They can get the records later when it goes to court, not search your phone now. If they believe you were violating the law an officer will not do anything to prove you innocent, it's not his job.

[Elderberry]

I haven't seen the law, but it would seem there would have to be reasonable cause. I cannot see that information pertinent to asking for license, registration and insurance kind of scenario. Just think of information you have on your phone that is confidential about OTHER people. It would seem a compound rights issue beyond the possessor of the phone.

I must admit it doesn't surprise me. Individual rights are under attack like never before in my experience.

There you go again! Spoiling a perfectly good post, one that I could have agreed with whole-heartedly, by adding that glitteringly false generality!;-)

[LLQchasm]

It is now the law. In Calif a police officer can now rummage through your phone, data pad or other electronic device without the need of a warrant, just like they can look through your pants pocket, or purse.

http://redtape.msnbc.com/2011/01/court- ... rrant.html

So, goes more of our personal freedoms.

the rebbi

There's been an increase in the numbers of cops killed or wounded in action in recent years and this January has been a record high month.

[The CO]

There's been an increase in the numbers of cops killed or wounded in action in recent years and this January has been a record high month.

Perhaps people are getting twitchy & pissed off when police try to search their phone (or person or car or house) without probable cause?

[Rabbi Dali Rick]

Did you read the article? Or just the headline? It has nothing to do with killing cops, what you think, the cop killers are calling or texting someone for what they are about to do? If a cop pulls you over for say, a brakelight out and you are of Muslim or Arabaic descent, or any of a wide variety of profiles, and he sees your phone on the seat, he can just pick it up and start going through your texts, e-mails, and recent call list, now say he made the stop based on profiling. This opens up a whole set of issues. Personally I have my phone password protected and it will erase the contents of the phone if the wrong password is used to many times...

the rebbi

[The CO]

I did read the article. More than a bit frightening. I'm pretty sure this will be challenged in a number of court venues. Even a non-lawyers mind can see a lot of reasons this could be found unconstitutional.

[ygmir]

I bet, it has to do with time lines..........
like, if the cop pulls you over, for talking on your phone while driving, his dash cam would show time. Then, he could check your phone, to see what time you were on it.

Also, accidents........seeing if the phone was working at the time.

I disagree if it's wide sweeping.
I could, though, see it in those cases, being good for accuracy.
It would also prove you innocent, if you were really not talking.

That's what the subpoena process is for. They can get the records later when it goes to court, not search your phone now. If they believe you were violating the law an officer will not do anything to prove you innocent, it's not his job.

yeah, good point there........I guess they could subpoena your phone records, for court.

and, yeah, I know the cop is not trying to prove you innocent. I more meant, if accused, you could show him, or, he could check, and it'd prove you were not on the phone.

again, though, I suppose a subpoena would work.........or, if you volunteer proof.

good catch.

[Trishntek]

jkisha wrote:

There you go again! Spoiling a perfectly good post, one that I could have agreed with whole-heartedly, by adding that glitteringly false generality!

Well at least you admit it glitters

I do not understand how you can say it is a false generality when you have no idea what my life experience is.

Keep in mind that the article does refer to "someone who has been ARRESTED".

[Rabbi Dali Rick]

"When you allow a line to be drawn, it is up to the powers that be to say where it will be drawn, and when it can be moved."

That's how it always starts, they can take your phone, during a routine traffic stop, handcuff you, at that point you maybe considered "under arrest", we are not just talking a simple talking on a cell phone infraction, think big brother.

the rebbi

[Rabbi Dali Rick]

I remember that they once discovered "one" woman cheating on welfare, and using that, tried to get welfare cut to millions as they shouted "See, see their all misusing Welfare"

Just think if we took that approach toward Politicans, or CEOs.

the rebbi

[mdmf007]

I bet, it has to do with time lines..........
like, if the cop pulls you over, for talking on your phone while driving, his dash cam would show time. Then, he could check your phone, to see what time you were on it.

Also, accidents........seeing if the phone was working at the time.

I disagree if it's wide sweeping.
I could, though, see it in those cases, being good for accuracy.
It would also prove you innocent, if you were really not talking.

It is not my job to incriminate myself, and in fact I am constitutionally protected from doing so. If the state wants evidence, they need a warrant. This will never hold up in the 9th.

[Mojojita]

This is not about them searching your phone when they pull you over. It's about searching your phone AFTER you are arrested. It is still concerning enough that I will look up the case law.

[theCryptofishist]

Just think if we took that approach toward Politicans, or CEOs.

*fishy drifts into wonderful fantasy, where the uc regents have to scrub toilets and freaky preachers cut lawns and gwb picks up dog shit with leaky bags.*

Three hours later:
Huh, wha...Where'd everybody go?

[Trishntek]

Snap out of it fishy! You're losing grasp of reality!

So help me understand something,,,, are "in custody" and "under arrest" the same thing as "being detained"? I've never had the displeasure of personally dealing with anything other than a traffic stop so please be gentle on my ignorance.

edit: The self-incriminating aspect does seem plausible.

[Rabbi Dali Rick]

I have a question, addressed to everyone in earshot, hypothetically, say you were driving down the street, two blocks from your house, the police pull you over and ask for your drivers license, and ask you too step out of the car. The second officer as you to put your hands on your head and just relax while they run your numbers. While they are wAiting they see your iPad/phone on the seat they pick it up and start going through you recently dial/website visited ... Would you have a leg too stand on, if they found questionable material, and then placed you under arrest?


the rebbi

[Rabbi Dali Rick]

I have a question, addressed to everyone in earshot, hypothetically, say you were driving down the street, two blocks from your house, the police pull you over and ask for your drivers license, and ask you too step out of the car. The second officer as you to put your hands on your head and just relax while they run your numbers. While they are wAiting they see your iPad/phone on the seat they pick it up and start going through you recently dial/website visited ... Would you have a leg too stand on, if they found questionable material, and then placed you under arrest?


the rebbi

[Rabbi Dali Rick]

I have a question, addressed to everyone in earshot, hypothetically, say you were driving down the street, two blocks from your house, the police pull you over and ask for your drivers license, and ask you too step out of the car. The second officer asks you to put your hands on your head and just relax while they run your numbers. While they are waiting, thhe first officer searches your car, he sees your iPad/phone (phone/laptop) on the seat, they pick it up, and start going through your recently dialed/website visited ... Would you have a leg too stand on, if they found questionable (in their minds) material, and then placed you under arrest?


the rebbi

[Elderberry]

Snap out of it fishy! You're losing grasp of reality!

So help me understand something,,,, are "in custody" and "under arrest" the same thing as "being detained"? I've never had the displeasure of personally dealing with anything other than a traffic stop so please be gentle on my ignorance.

edit: The self-incriminating aspect does seem plausible.

Under arrest is a totally different category, requiring a formal procedure including booking and fingerprinting and, of course an official record.

In custody and being detained means that basically they don't have enough evidence to arrest you.

I'm no expert, my answers are gleaned from hours of watching cop TV.

JK

[theCryptofishist]

Would you have a leg too stand on, if they found questionable (in their minds) material, and then placed you under arrest?

[Elderberry]

jkisha wrote:

There you go again! Spoiling a perfectly good post, one that I could have agreed with whole-heartedly, by adding that glitteringly false generality!

Well at least you admit it glitters

I do not understand how you can say it is a false generality when you have no idea what my life experience is.

Keep in mind that the article does refer to "someone who has been ARRESTED".

You are right, I don't know what your life experiences have been. I'm basing my criticism on my life experience which obviously is different than yours. I haven't experienced my rights being taken away. And, I haven't been arrested lately either. But I do agree with the whole first part of your post.

JK

[sacramentogames]

I have a question, addressed to everyone in earshot, hypothetically, say you were driving down the street, two blocks from your house, the police pull you over and ask for your drivers license, and ask you too step out of the car. The second officer asks you to put your hands on your head and just relax while they run your numbers. While they are waiting, thhe first officer searches your car, he sees your iPad/phone (phone/laptop) on the seat, they pick it up, and start going through your recently dialed/website visited ... Would you have a leg too stand on, if they found questionable (in their minds) material, and then placed you under arrest?


the rebbi

Complete violation of the fourth amendment. An officer cannot look through your vehicle without probable cause. There is one place an officer can look into in your car and that is your glove box. If you do not give consent then the officer will have to have reason to believe a crime has been committed (or the smell of marijuana) to go into any other part of your vehicle. If an officer looks anywhere in your car without permission (other than the glove box), he will be acting under color of authority (action carried out as if under the authority of law, but is actually done in violation of the law).

Peace officers are subject to the statute and be held PERSONALLY LIABLE if, while acting under color of the law, they deprive or deny someone a legal right to which the person was entitled.

Cursory searches is the only search an officer can make unless he has "reasonable suspicion"you have committed a crime. An officer may search your OUTER CLOTHING to locate possible weapons, it is not to search for evidence or contraband.

Once an officer realizes an object is NOT A WEAPON, or an object that can be used as a weapon, the officer may not further manipulate the object; they must move on. Any additional feeling or grabbing, or manipulation of the item is outside the scope of the search for weapons and will be considered an ILLEGAL SEARCH.

Glossary:

Probable cause: A set of facts that would cause a person of ordinary care and prudence to entertain an honest and strong suspicion that the person to be arrested is guilty of a crime

Reasonable suspicion: Enough facts and information to make it reasonable to suspect the criminal activity is occurring, and the person detained is connected to that activity; reasonable suspicion is required to justify a detention.

I will look up the new cell law for you. I am not clear on the elements of the law. I am pretty sure that a peace officer would have to have reasonable suspicion that the phone was used during a crime (drug activity or driving while on the phone)

These are the laws an officer must abide to. If an officer is dishonest and can articulate otherwise you will be up shit creek. Hope this helps.

[sacramentogames]

Snap out of it fishy! You're losing grasp of reality!

So help me understand something,,,, are "in custody" and "under arrest" the same thing as "being detained"? I've never had the displeasure of personally dealing with anything other than a traffic stop so please be gentle on my ignorance.

edit: The self-incriminating aspect does seem plausible.

Custody: Is a formal arrest or its "functional equivalent"

Detention: An assertion of authority that would cause a reasonable people to believe they are not FREE TO LEAVE or otherwise disregard the police and go about their business; a detention is LIMITED in scope, intensity, and duration

Reasonable suspension of criminal activity MUST EXIST to make a detention lawful.

[sacramentogames]

It is now the law. In Calif a police officer can now rummage through your phone, data pad or other electronic device without the need of a warrant, just like they can look through your pants pocket, or purse.

http://redtape.msnbc.com/2011/01/court- ... rrant.html

So, goes more of our personal freedoms.

the rebbi

Thanks for the link. Gave me good incite of what this law is all about. I have gone to the case ruling The People vs. GREGORY DIAZ and I have read the case in its entirety. Very interesting case.

This is called case law. The officer went into Gregory's cell phone after arresting him for the sale of (6) ecstasy. The officer had already made the arrest and the phone became evidence to the crime of the sale. The officer looked through the phone without warrant because the phone was used to commit a crime.

As for "can a police officer look through my phone without probable cause"? The answer is NO. Unless your iphone or ipad or similar device is considered evidence to a crime, the search would be unlawful and would be a violation of your fourth amendment

Hope this clears it a little.

Although this law in now in place, it will be seriously challenged by the higher courts. You could expect this in the supreme court soon for clarity of the law.

My opinion: IF this law is designed to ONLY be able to look through your phone as evidence to a FELONIOUS crime, I am for it. If it is used during an infraction for driving while on the phone I think this is a terrible breakdown of the system. Lets all hope the upper courts get a hold of this soon for clarity.

I will research this some more and post what I find.

[sacramentogames]

This is not about them searching your phone when they pull you over. It's about searching your phone AFTER you are arrested. It is still concerning enough that I will look up the case law.

http://www.courtinfo.ca.gov/opinions/do ... 166600.PDF

[Rabbi Dali Rick]

Thanks for the insight SG, oh, and welcome to the board...


the rebbi