Gizmodo
Here's a frightening but real proposition: if you are caught breaking certain traffic laws, not only do police have the right to search you—they can go through all your electronic data as well—your text messages, call histories, browsing history, downloaded emails and photos. In a recent academic paper, South Texas Assistant Professor Adam Gershowitz explains that because many traffic violations are arrestable offenses, just as a cop could search your pockets for drugs, said cop can also search your pockets for a smartphone and go through all its contents. The same is true for any standard arrest, and given the amount of data in current smartphones, it's a scary proposition (even for law-abiding citizens like us).
We'll give you the CliffsNotes version of Gershowitz's 30-page article in which he outlines the situation.
The Issue:
While society and technology have changed drastically over the last few decades, the search incident to arrest rule has remained static. Thus, if we think of an iPhone as a container like a cigarette package or a closed box, police can open and search the contents inside with no questions asked and no probable cause required, so long as they are doing so pursuant to a valid arrest.A Recent Precedent:
The Fifth Circuit's recent 2007 in United States v. Finley is representative. Police arrested Finley after a staged drug sale. The police then searched Finley incident to arrest and found a cellphone in his pocket. One of the investigating officers searched through the phone's records and found text messages that appeared to relate to drug trafficking...the court explained that "police officers are not constrained to search only for weapons...they may also, without any additional justification, look for evidence of the arrestee's crime on his person in order to preserve it for use at trial.The Solutions:
Courts and legislatures can attempt to minimize this invasion of privacy by changing the legal rules to require that searches be related to the purpose of the arrest, by limiting searches to applications that are already open, by restricting suspicionless investigation to a small number of discrete steps, or by limiting searches to data already downloaded onto the iPhone, rather than data that is merely accessible through the iPhone's internet connection.
I guess the larger moral of the story is that if you plan on getting arrested, don't have a smartphone in your pocket with all the seedy plans. [article via popgadget]
Comments
Lock your phone with a PIN, you dont have to disclose jack without a lawyer present.
it's a good prospect especially since the courts have ruled that only the data pertaining to the crime in question is accessible...this will save a lot of bozos from infidelity findings.
It would seem that if a Police Officer picked you up for a crime that he would search the phone no matter what. I can't see how this is a new thing they are doing. or was it just illegal for them to do it before?
Lock the phone, encrypt it if possible and plead the fifth. New iPhone app - one button delete!
@Arelar: i was thinking the same thing
Seriously... I can't see a cop doing this on a common traffic stop unless it was somehow applicable to the crime. You know, like if you are text messaging and driving, to get the message and time stamp. It's not like you have two day expired registration and end up in the back of a patrol car with the cop calling your girlfriend.
@Lavallee017: No, the article argues that with the advent of smartphones, the stakes have just gotten a lot higher.
@Arelar:
"Do you mind if I look round the phone a little bit?"
"Well my phone is locked and the data, you gonna hack? And I know my rights so you gon' need a warrant for that."
"Aren't you sharp as a tack are some type of lawyer or something? Or somebody important or something?"
"Nah, I ain't pass the bar but I know a little bit, enough that you won't illegally search my shit."
That was my thought exactly, the phone locking part that is. Good thing I already have a habit of doing this. But I don't plan on doing anything illegal; not until next Friday at least. :-)
The moral is that people are gonna need to start encrypting all their stuff real soon because of the stupid courts that have decided that these things aren't essentially an extension of our brains and are instead like a suitcase.
Searches for contraband should be limited to physical objects. Police and border agents should not be permitted to browse through people's private data or personal papers. It is insane that this is being allowed.
Arelar is right in practice, if not in law. Once arrrested, the cops can search you legally. The question is, if the phone is locked, will they go through the trouble to have their tech department get them in. The answer is no, especially if you were arrested on a petty offense.
Remember, most departments are run on small county budgets, so they have no real reason to dust everything for finger prints, send samples down to the lab, or break the encryption on a phone.
Lock it up!
The headline is misleading.
The case established that if you get arrested they can search it. Speeding tickets do not give them permission to search your phone because they are citations, not arrests. Arressts are what give them permission.
Even if you got arrested for speeding I doubt they could search your phone. I think the key line from the ruling is: "...look for evidence of the arrestee's crime..." If you get arrested for speeding and nothing else, the phone isn't going to contain any evidence that you were speeding.
The case in question involved a drug dealer, and it's not a strectch to assume the phone would contain evidence.
All that being said, the best thing is to follow my 3 easy steps any time a cop is trying to pull you over.
1. Toss the gun out the window.
2. Pour out your beer.
3. Lock your phone.
Then you can safely pull over.
@Bender: That's not necessarily true. I mean, if you're using the GPS on your smart phone or whatever, could it possibly keep track of your speed like a regular GPS? Or just tell you how fast you were going while you were going that speed.
what about embarrassing and personal sexy messages and pics i may or may not receive from my hot girlfriend on a daily basis?? i don't think i want some cop looking at that stuff. . . and it should be my right to keep that kind of thing on my personal phone without fear of it being seen by others.
yeah locking your phone is an answer, but im sure all of us have sent jumbled letters to recent contacts a few times that we forgot or are in a hurry.
Here's a great tip, DON'T BREAK THE DAMN LAW!!!! That should quell any problems you would have with cops searching your stuff.
@92BuickLeSabre: Well played...
@ferris209: Sorry for the double-post, but this wasn't here when I posted. I love the "don't break the law and it doesn't matter what happens" people. You might not care about invasion of privacy issues, but the rest of us do. The people who would allow the government to track everything they do at all times (like yourself) under the guise that they're not "doing anything wrong" are ridiculous to me.
"The trade-off between freedom and security, so often proposed so seductively, very often leads to the loss of both." Think about it.
Couldn't they just take out your memory card and search it?
@92BuickLeSabre: "Well, we'll see how smart you are when the geek squad comes"
"I got 99 cell phones, but I locked each one, text me!"
ARGGGHHH!!!! now we can catch those meddling kids.
This issue is also related to border searchs. See [gdgrifflaw.typepad.com] and [volokh.com]
This can be a big issue if, say, a cop pulls over defense attorney and asks to go through his laptop and smartphone. It raises all sorts of constitutional issues.
@Bender: Actually, in many states the cops do have the discretion to arrest someone for speeding, they just rarely do.
Incident to arrest, the cops can search anything and everything. Its part of the "inventory" they take of everything you have on you. If you're in a car, they can take that car apart to search it (ie take the doors off and look inside the doors).
Now that search is entirely different from a "stop and frisk" when they have a reasonable suspicion of criminal behavior. In that instance, the search is much more limited in scope (they can search you, or the area of the car you have access too, for weapons -- this would exclude a locked trunk).
The bottom line is, illegal activity in a car equals screwed. The threshold is less for the cops to stop you and once they do its easier to justify a search. So keep your phone clean or encrypt the thing.
Cop: in searching your phone, i notice that you make alot of calls.
you: yes, i have 3000 anytime minutes.
cop: I only count up that you use 2200
you: well, i usually have a few spare. i do other things too, like traffic drugs.
cop: i'm very lonely. could you use some of your spare minutes to call me?
you: sure, if i have extra time between the drug trafficking.
cop: just put me on the list. i don't have to be at the top.
Only idiot criminals use cellphones anyway.
I've been a police officer for 25 years and a techie for much longer. I can tell you that any police officer worth his salt (and there are a lot that are not) would just seize the phone and obtain a search warrant. That takes most of the "iffiness" out of the situation. I really don't think you'll see too many (I won't say it'll never happen) officers searching your phone or PDA during a DUI arrest or something similar.
Some posters are calling these searches illegal. That's not the case. This decision by the 5th Circuit says the searches are legal pursuant to arrest. The only people that really need to worry about this are drug dealers and bookies. And people with kiddie pr0n on their phones.
I think I am going to rename a contact "drug dealer"
@yelraf:
So would it be correct to say that a traffic citation would not be grounds to seize the phone?
@gokor:
Since courts have already ruled that you can't use your GPS info to prove you were not speeding, I would think the police would not be able to use your GPS data to prove you were speeding. Either it's useful as evidence or it is not, and courts have said it is not.
QUOTE: Even if you got arrested for speeding I doubt they could search your phone. I think the key line from the ruling is: "...look for evidence of the arrestee's crime..." If you get arrested for speeding and nothing else, the phone isn't going to contain any evidence that you were speeding.
Unless your phone has GPS on it.
Okay, what the hell are you guys putting on your phone that you are concerned about locking it from a cop?
The cases dealing with the 4th amendment (a person's right against illegal searches and seizures) usually allow for searches in an incident to arrest of the person being arrested and his IMMEDIATE surroundings (meaning within the arrestee's reach). The primary reason for this is for the officer(s) protection at the time of the arrest (make sure there aren't any weapons on the arrestee that the arrestee could potentially use). The secondary purpose is to determine if there is any evidence that could be used against him. Now I am no expert in this area yet, but it appears that if the phone is seized, the would be able to seize it and use the phone against him. However to actually look at it's contents, I really believe that a warrant to search the contents of the phone is needed. The purpose to search it immediately is to prevent evidence from being lost. But this evidence is not lost if the phone is destroyed or purged. You can easily get a warrant for the phone records. There are a number of exceptions if this search is made incident to an arrest in automobile, but that would take to long to explain.
@yelraf: I worked as a Fed for several years, and can tell you that if we were interested in what someone was doing with their phone, we wouldn't need to bother with seizing it. We get a wiretap, and we get everything that you're doing with it real time. All we need to know is a GPS coordinate and an exact time that you're on it. From there, narrow it down to a short list of numbers connecting through the closest cells, and we'll find your number pretty quickly. Especially if we can see you initiate and terminate a call to get call time.
State/County/Local might go fishing through a phone they get at a traffic stop, but at a Federal level, they already know enough about a suspect that they don't need the actual phone. But even at the State/County/Local level, they're not going to go fishing through a phone if there's no suspicion that you're up to something bigger. Now, they pull you over for speeding and find felonious quantities of controlled substances, they would be smart to get your phone and run down every call/contact/message in it.
It is now illegal to drive and talk on a cell phone in some cities. I could imagine that if you got pulled over for this, the cop would probably want to review your call history, and take notes in case you contest in court.
@Sqube: I think SomeoneUKno may have played it one better.
@Bender: In some jurisdictions speeding is an arrestable offense. In Atwater v. Lago Vista, just not wearing your seatbelt was upheld as an arrestable offense.
Once there is an arrest, then the search incident to a lawful arrest incorporates obtaining/protecting evidence, protecting the officer, or trying to escape.
In your example, establishing one of the above could certainly be a stretch, and in most cases the defense attorney should be able to exclude whatever was found, but prosecutors have won more creative arguments to be sure.
@Monty:
"Okay, what the hell are you guys putting on your phone that you are concerned about locking it from a cop?"
I think most people will agree that that isn't the friggin' point.
For me, it's a few cracked apps and some txts to friends regarding the process of acquiring, err, data of sorts.
@Bender: Generally speaking, I would think that you're correct. However, here in Virginia, which is in the 5th Circuit, you can be arrested for speeding IF you refuse to sign the summons. I've seen it happen before. However, I really don't think anyone's going to want to search your cell phone for that. Even the GPS thing doesn't matter. The GPS is nowhere near accurate enough to use in court to prove your speed. That's been tried as a defense and didn't work.
Just remember that none of this is written in stone. The law can be "interpreted" in various ways.
Also, what could be in your phone that would really prove useful for some petty offense? Contacts? They may be important if you're a drug dealer or bookie. GPS? Only if you try to say you weren't somewhere that you phone will say you were. Like a murder scene. Then you're problems are just beginning. As someone else stated above, most of what would/could be useful can be obtained from records your carrier keeps.
@elvisisdead: You're dead wrong. Elvis is alive and living in Henry County, VA.
Also, I've had to obtain orders for realtime tracking once or twice and really don't relish having to do it again. It's a huge pain in the arse (it was for me, anyhow). I've worked with numerous federal agencies and always had a good working relationship with all of them. The Marshals are the masters of cell phone tracking, IMHO.
@wingbatwu: Not exactly. If it's a prepaid that was activated over the phone, the person activating it has no proof that you were the actual person using it. Making it all circumstantial, and not valid evidence.
Though in this case, you actually have the phone on you, so you're kinda stuck.
@Sqube: I agree with you. People that think the government dismissing our privacy is not an issue due to them not breaking any laws are completely retarded. I have problems with those people because they're allowing the gov. to turn the USA into a complete police state where you're innocent, but we're going to keep snooping your shit anyway.
@myotheralt: I think I'm going to change my boss's phone number in my phone to "drug dealer."
@axiomatic:
Cop: You know kid, it's not the best idea to name your contact "drug dealer" if you don't wanna get caught.
//Cop proceeds to call "drug dealer"
Drug Dealer: Moe's Pharmacy...
Cop: Uhh...wrong number.
Are they even smart enough? Most just have GEDs or high school diplomas.
@Earthslide:
Most State Police are required to have a 2 yr degree if I'm not mistaken.
Oh crap they got Moe!
I...I mean bravo law enforcement!
@earthslide:
My department, which is a municipal dpt. with 54 sworn positions, requires at least a 2 yr. college degree. Not all do, though. I suspect a GED will get you hired in lots of places.
Really, a picture from the movie Speed is the best you can come up with for this article? Umm, maybe next time try something from Reno 911... almost anything from that show would have worked better than this.
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