Courts - Legal to search cell phone without warrant

[sleestak]

In California the court ruled that it is legal for police to search the cell phone of anyone who has been arrested.

Link.

This seems to be a rather scary development. If you are arrested and have an IPhone (or other smart phone) the police can search it. These days for many people that is a huge amount of information. Suddenly, if you are arrested and have a smart phone, your email is searchable. Same with your laptop or handheld computer.

Thoughts?

Slee

[DragonAsh]

@sleestak

In California the court ruled that it is legal for police to search the cell phone of anyone who has been arrested.

Link.

This seems to be a rather scary development. If you are arrested and have an IPhone (or other smart phone) the police can search it. These days for many people that is a huge amount of information. Suddenly, if you are arrested and have a smart phone, your email is searchable. Same with your laptop or handheld computer.

Thoughts?

Slee

Isn’t this just an extension of existing laws that allow police to search & seize anything on the body of the person being arrested, and can search any ‘closed’ container found on the body of said person?

Scary in that so much information can be left on an iPhone, but the way the law is written I don’t think the decision itself can necessarily be faulted. I do suspect that the law was not written with modern day electronics in mind.

I doubt this would extend to a normal laptop, since that probably isn’t in your pocket (and thus not ‘on your body’).

[alphaboi867]

@DragonAsh

…I doubt this would extend to a normal laptop, since that probably isn’t in your pocket (and thus not ‘on your body’).

Do women usually get their purses taken away and searched when they’re arrested? I don’t see how a purse is any different that a laptop bag.

[villa]

There’s an important paragraph at the end of the article.

Password-protection of smart phones might be a useful tool to ward off a warrantless search – it’s not clear that an arrested suspect could be compelled to divulge his or her password to police – but that legal argument has not yet been made.

However weak your password protection may be, this is another very good reason to keep it turned on.

[DragonAsh]

Good question - IANAL, but wouldn’t purses be a ‘search incident to an arrest’ in terms of checking for any weapons etc? Would this extend to a laptop?

[sleestak]

From the linked article:

By applying the “personal property on the defendant’s person” standard, Rasch said, the ruling could logically extend to tablets or even laptop computers, he said.

It also flies in the face of established law, which prohibits the warrantless search of briefcases by police, other than a quick search for weapons, Rasch said.

So, if you can search a briefcase looking for weapons/drugs/etc but not read the documents, how is searching a phone, PDA or laptop different than a briefcase? The format is different but the information is the same.

Slee

[RitterSport]

@villa

There’s an important paragraph at the end of the article.

However weak your password protection may be, this is another very good reason to keep it turned on.

That helps with Blackberrys, but does that protect an iPhone after you plug it into a computer? In other words, if I plug a Blackberry into a computer, it requires a password to open it up, whereas my kids’ iPod Touches do not – what about an iPhone?

[villa]

@RitterSport

That helps with Blackberrys, but does that protect an iPhone after you plug it into a computer? In other words, if I plug a Blackberry into a computer, it requires a password to open it up, whereas my kids’ iPod Touches do not – what about an iPhone?

I know my Droid needs a password - well a pass-drawing, I guess is the way to describe it. I assume there is an option on an iPhone to require password access.

[Bricker]

@villa

There’s an important paragraph at the end of the article.

it’s not clear that an arrested suspect could be compelled to divulge his or her password to police

Um… United States v. Boucher ?

[villa]

@Bricker

Um… United States v. Boucher ?

I thought there was a case out there - what did it decide?

[Bricker]

@villa

I thought there was a case out there - what did it decide?

Case is actually styled In re Jury Subpoena to Sebastien Boucher:

The Government’s forensic expert was unable to conduct a search of the computer’s contents because the contents were password-protected. The grand jury issued a subpoena to Boucher for any passwords associated with the laptop. Boucher moved to quash the subpoena, arguing that the act of production of this information would violate his Fifth Amendment privilege against self-incrimination.
.
.
.
Because Boucher has no act of production privilege to refuse to provide the grand jury with an unencrypted version of the Z drive of his computer, his motion to quash the subpoena (as modified by the Government) is denied. Boucher is directed to provide an unencrypted version of the Z drive viewed by the ICE agent. The Government may not make use of Boucher’s act of production to authenticate the unencrypted Z drive or its contents either before the grand jury or a petit jury.

[villa]

Thanks - do you have a cite handy? I’d like to read the opinion and I have no free lexis search time :mad:.

[villa]

Ignore that - got it…

[Simplicio]

@Bricker

Um… United States v. Boucher ?

That was in response to a supeona though. In the case of the OP, the concern seems to be searches conducted simply as a result of a person being arrested.

In anycase, I agree its bizarre that they can read whats on your laptop but not whats in your briefcase.

[villa]

Interesting - could you look at this situation differently though - more of a 4th than a 5th situation. There they had a warrant, and the court said he couldn’t refuse to give the password up. This is warrantless, and it seems like courts have made determinations based on how much a person attempts to keep something private. A non-password protected phone can be viewed by anyone unless you take it to the rest room when you get up from the bar, while if you use password security, you are at least taking an initial step to avoid disclosure.

[bashere]

@Bricker

Um… United States v. Boucher ?

Boucher requires that a suspect his or her password to the police? I am not a lawyer, but I find that unlikely.

The quote you provided certainly does not support that.

(I’m not sure if I’m nitpicking or not. If a subject is compelled, at arrest, to provide a password to the police and refuses, I am curious what the penalties are)