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Search, Seizure And Cellphones

The Supreme Court takes on warrantless searches of cellphones.  We’ll look at the Constitution and unreasonable search and seizure in the digital age.

People walk on the steps of the U.S. Supreme Court in Washington on Saturday April 26, 2014. Two Supreme Court cases about police searches of cellphones without warrants present vastly different views of the ubiquitous device. Is it a critical tool for a criminal or is it an American’s virtual home? How the justices answer that question could determine the outcome of the cases being argued Tuesday, April 29, 2014. (AP)

People walk on the steps of the U.S. Supreme Court in Washington on Saturday April 26, 2014. Two Supreme Court cases about police searches of cellphones without warrants present vastly different views of the ubiquitous device. Is it a critical tool for a criminal or is it an American’s virtual home? How the justices answer that question could determine the outcome of the cases being argued Tuesday, April 29, 2014. (AP)

So, you’re arrested and here’s what police want.  They want the power to search your cellphone, your smartphone, without a warrant.  Right now, they’ve basically got it.  Cases before the Supreme Court today will decide whether they keep it.  The constitution guarantees Americans protection against “unreasonable search and seizure.”  What should that mean now, when a single smartphone can hold much of the record of your life?  Should that be constitutionally protected?  This hour On Point:  cellphones, smartphones, at the time of arrest, and unreasonable search and seizure in the digital age.

– Tom Ashbrook

Guests

Jacob Gershman, lead writer for The Wall Street Journal‘s Law Blog. (@jacobgershman)

Adam Gershowitz, professor of law at the William and Mary University Law School.

Kevin Boyle, general counsel for the International Union of Police Associations, AFL-CIO.

Sheriff Grady Judd, Polk County, Fl. Sheriff. (@PolkCoSheriff)

From Tom’s Reading List

SCOTUS Blog: Argument preview: Police and cellphone privacy – “Although the Court has made clear that the Fourth Amendment was written for people, it also extends — sometimes — to their ‘effects,’ or items of property.  But the constitutional privacy of property may depend upon where it is found and how it is used.  In fact, if it turns up in a police station, it is not entirely clear how private it remains.”

New York Times: Supreme Court Taking Up Police Searches of Data Troves Known as Cellphones – “The justices will have to decide how to apply an 18th-century phrase — the Fourth Amendment’s prohibition of ‘unreasonable searches and seizures’ — to devices that can contain 100 times more information than is in the Library of Congress’s 72,000-page collection of James Madison’s papers.”

Newsweek: The Right to Silence Your Phone – “While nobody doubts that searching a cell phone is a significant invasion of privacy, privacy advocates and the law-enforcement community are divided sharply over the societal costs and benefits of limiting the search incident to arrest doctrine. The privacy side of the debate argues that warrantless searches of cell phones—in particular smartphones—are far too invasive, chill the use of communications technology and leave too much room for abuse. The law-enforcement side counters that restricting such searches will seriously impede them.”

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  • Yar

    Are you willing to bet that the President’s blackberry has encryption technology already built in?
    Two weeks ago you planned a show on zero day flaw called heartbleed and encryption.
    Encryption is regulated by our Federal government and a back doors may have been inserted.
    I remember a case: Phil Zimmerman Vs the attorney general. It was dropped in 1996. Heartbleed may have been ‘discovered’ on that date. If the NRA ever wants my support they will have to get into the constitutional rights to provide solid encryption, because encryption is regulated as munitions, that and treating electronic information should be just like laws which protect personal papers from search and seizure.Sometimes you just win, other times you think you did and everything remains the same. I am not surprised by the heart bleed “flaw’.
    http://www.philzimmermann.com/EN/news/PRZ_case_dropped.html

  • Matt MC

    My smartphone contains more personal information about me than any set of documents in my house. I have 64GB of storage, including files linked to cloud storage, all of my passwords for websites, GPS tracking data for every place I’ve been since I’ve had the phone, and call logs.

    Should the police need a warrant? Is that a rhetorical question?

    • DeJay79

      And how likely is it that a criminal (the premeditated kind) would have that device with all the same info on it with them at times of arrest?? an good criminal would know to avoid those like the plague.

      • Matt MC

        I’m not sure why this would make a difference. In fact, it would only strengthen my argument. What good is it to violate my privacy if your hypothetical criminal mastermind would not have any relevant information on his phone anyway?

        • DeJay79

          that is why I up voted your comment and then said this, to strengthen your point. That is why I started with the word “and” and not the word “but”

          • Matt MC

            I see. Well, since you agree with me, I’ll also give your comment an up vote. :P

      • http://www.laugh-eat.com/ kyron

        it’s not about criminals, it’s about citizens. a modern smartphone is a bottomless container of all personal data.

  • Shag_Wevera

    I was about to scratch an itch yesterday when it crossed my mind that there was probably a camera somewhere recording my relief for posterity. Privacy isn’t dead, but a religious representative is standing bedside.

    • hennorama

      Shag_Wevera — “relief for posterity,” or “relief for posterior”?

      Obviously, no response is required.

  • Coastghost

    With witless cell phone drivers impeding traffic flow on a daily basis, we can hope that police confiscate MORE cell phones before idiot cell phone drivers take to the wheel.

    • nj_v2

      Just yesterday, i saw a woman eating a large slice of pizza while drive. Cops could save on lunch expenditures. A couple of Big Macs and a pizza slice here and there. Kill two birds with one confiscation.

  • J__o__h__n

    The contents of a cellphone should not be subject to a search without a warrant unless there is an emergency exception. What constitution right has law enforcement not claimed will seriously impede them?

  • http://hlb-engineering.us/ HLB

    The phrase you never want to hear: “Good morning, sir. I’m from the government and we’re here to help.”

  • Jeff

    You know, I wouldn’t have a problem with this if I could make a citizen’s arrest on a police officer using their cell phone for texting (or talking on their phone in states where that’s illegal) and then demand to see their cell phone to prove they were illegally using an electronic device. BTW, the police have laptop computers in their vehicles that I see them use constantly while driving…I mean really, why else would they be in there.

  • Scott B

    The SCOTUS has shown they’re not all that savvy on tech. From so many of their quotes, there doesn’t seem to be much beyond Scalia (& company) understanding a GPS tracking unit. If this was Big Biz wanting something, then we’d know how the Roberts court would go. But I fear that in that court, and in those chambers, the echos of Ted Stevens will ring though all that marble and granite, “TUBES! Tubes!..tubes!… tubes…”

  • Coastghost

    “Smartphones”: a triumph of marketing flattery.

  • Bill98

    Does locking and encryption of my cell phone change the equation? That is, if the police want to look at the contents of my phone, but it is locked, am I obligated to unlock it?

    • DeJay79

      great question and I would say no if they asked

      • Bill98

        Thanks, and I would say ‘no’ as well, at least until my lawyer informed me that I had to. Also, my phone has security on it, which will lock it permanently if more than 10 unsuccessful attempts are made to unlock it. So, I appreciate Dr. Gershowitz’s answer, but the police would not have much luck if they tried to just guess my password!

    • NuprinBoy

      I am not a lawyer, but I believe…

      No–you are not obligated to unlock, unless they have a warrant for specific contents (e.g. specific calls/texts/video/content) or “reasonable suspicion” of criminal activity (facts rather than a hunch). See http://www.wired.com/2014/01/scotus-border-gadget-searches/

      Now, if they have the phone logs of the other party showing you called them or texted them at the time, then they have evidence showing the information independent of the decrypted contents of your phone.

      So if you’re in court and the court orders that your phone be unlocked due to show that you were in use of your phone and you argue 5th amendment right against self incrimination, you could be found in contempt.

  • ognywogny

    You live in John Robert’s America fools, you have no rights!

    • TFRX

      Oh, if it were just John Roberts. THe latest rebirth of this goes back at least a dozen years, to the beginning of the war on terra.

      Not that the media’s changed since a Democrat’s in the White House, but I’m taking nominees for media figures saying “It’ll protect us from Muslim terrorists”. Curious if that has traction now.

      • Steve__T

        “Our enemies are innovative and resourceful, and so are we. They never stop thinking about new ways to harm our country and our people, and neither do we.” `GHWB

    • creaker

      That’s not true – we’re free to do whatever they allow us to do.

  • creaker

    Slippery slope – if your cellphone, then why not your laptop or iPad? Or your home computer? Your GPS? Or data gathering devices in your automobile? Any phone records?

    If this holds up, not only will police tap cell phone data during an arrest – they will arrest any time they just want to see what is on your cell phone.

    • TFRX

      That does it. I’m going back to spark gap!

    • Euphoriologist

      If the supreme court sides with them, we can be sure the police will come to view every new day as a one-sided fishing expedition amongst the population to make their arrest quotas. And guess who the fish will be…

  • creaker

    So if one uses the “cloud” via their cell phone, would that also be open to search?

  • Paul Meade

    Lets see, I have my i Phone, I go to my Find My Phone app, locate the phone, touch actions and what pops up–I can erase my phone.

    I have to try the Faraday bag or Aluminum foil though.

    • http://www.laugh-eat.com/ kyron

      it wont work — the signal wont reach the phone.

      try this simple example — put your phone into a metal cocktail shaker w/ the lid on. then call it. note that it wont ring due to the metal blocking all radio signals…

  • John Elwer

    I have an android phone and I can log into my google account and through that, access my phone and wipe its contents. No problem.
    Of course, I am not doing anything illegal. I believe that feature is in place in case my phone is stolen so no one accesses my bank info, etc.

    • http://www.laugh-eat.com/ kyron

      iphone too.

      but if the police keep your phone in a metal box or foil bag or even room then your command won’t reach the phone since all signals are blocked.

    • Paul Meade

      precisely.

    • John Elwer

      Tom just quoted me!
      Made, my, day!

      • hennorama

        John Elwer — congrats.

  • ognywogny

    Jeez, Tom, how naive are you? Did you think sheriff Cletus from Fla. would want anything other than the ability to violate you in any form he sees fit?

    • http://hlb-engineering.us/ HLB

      Maybe ‘ol Clete will give you a grisly, booze-scented kiss when he’s through. Hoober Doober

      • ognywogny

        And therin lies the rub.

  • creaker

    If this is deemed ok, it’s going to shut down people using their devices to record police actions, police will now have the option to arrest to acquire and analyze and maybe lose or accidentally delete the data on your phone.

    • TFRX

      Good tangent.

      Which devices, though? Do seizure laws already extend to regular record-to-tape or record-to-immediate electronic storage card devices which do not function in any other way as phones or computers?

      • Steve__T

        Any device,personal property, property, and cash can be confiscated, and held until proven innocent. and some things are never returned.

  • http://hlb-engineering.us/ HLB

    Not in PA: arrested for driving wo. seatbelt on.* You can only be ticketed for it if a primary offense has already been committed. And you’re pulled over.

    * a secondary offense

  • Coastghost

    Has any cell phone service provider or cell phone manufacturer been sued successfully for complicity in automobile accidents, fatal or non-fatal? What would it take for a successful suit to be brought against the telecommunications industry for fomenting dangerous anti-social behavior?

    • nj_v2

      Sure. We could also sue restaurants who serve food eaten by people while driving, requiring them to take a hand off the wheel..

      And cosmetics manufacturers because, you know, i’ve seen women applying make up in the rear view mirror.

      People plug in personal listening devices, too, so we should go after Apple for all those iPods. Oh, wait, we already got Apple with the cell phones.

      Maybe even the musicians for making the music in the first place.

      The sun is distracting, too. Someone should sue God.

  • drwacker

    Perhaps this is a little off-topic, but… here we are talking about personal liberty/privacy and whether or not it should be carried forward to our cell phones, but no one seems concerned about privacy in one’s own home.

  • http://www.laugh-eat.com/ kyron

    Our world has changed — unlike the briefcase example which is a finite container, a smartphone is bottomless. Thus the law should change appropriately to provide the same protection intended by our constitution.

    We owe the government nothing as far as government rights — the citizen rights trump. The government serves the people, not the other way around.

    • Steve__T

      Well that is suppose to be the Idea, but not so much lately

  • Benjamin

    Given the extent of police brutality and racial profiling, I barely trust them to do traffic stops, much less handle my personal information. My phone has my email on it, and while I endeavor to not break the law, the legal framework of the US is so complicated, any of us probably break laws daily. A police officer looking for an excuse can find a broken law and lock us up, simple as that.

  • http://hlb-engineering.us/ HLB

    Not to worry.. the USA is getting smaller.* Less territory for the brain police to cover. {nod to the mothers of invention}

    * Global Heating. Look at the maps of the USA once the water gets here. {except in arid places like California}

  • JasonB

    The police aren’t here to protect and serve. They are here to find something you did wrong and get you for it. We live in a police state. The fact that the police are fighting to search our cell phones is evidence to that.

  • JasonB

    Pulling you over for a traffic violation is not reason to search a person for evidence of drug dealing.

    • Coastghost

      –unless evidence of illicit drug use or possession is discerned during the traffic stop, perhaps possibly maybe.

  • http://hlb-engineering.us/ HLB

    In the ’60s we had roach clips in the ash tray with aromatic herbal products burning.

    Today one could add a hemp-based, highly combustible SIM card holder in the ashtray. Procedure for traffic stop — Pull out cell phone card; insert in holder; hit it with the cigarette lighter; open windows; pull out driver’s license; wait for officer to ask: “Hey, what’s burning?”

    Answer: My civil liberties.

  • Bill98

    The sheriff must be joking. We’re supposed to just trust that the police don’t care about what they find in my phone, if it isn’t immediately criminal in nature. Isn’t that just another way of saying “if you aren’t doing anything wrong, you have nothing to fear”? Sorry, but I have the loss of my privacy to fear.

  • John Elwer

    I don’t mind that phones can be searched, I am not doing anything illegal!
    All the privacy freaks need to chill out. This is not really a big deal. The government does not want to look at the pictures of your children and texts stating you love your wife, or that you bought a Harry Potter book on Amazon.
    If you are doing something illegal I hope the police catch you with the evidence in your pocket.

    • ognywogny

      I hope they frame you for something you sheep.

      • John Elwer

        I’m not a sheep, I just follow the law.

        • JasonB

          A sheep goes where the shepherd guides them. You are a sheep.

    • Jeff

      Read the 4th Amendment please.

    • JasonB

      It doesn’t matter. You have a right to privacy. Thankfully we don’t live in the police state you covet.

    • 65noname

      “The government does not want to look at the pictures of your children and texts stating you love your wife, or that you bought a Harry Potter book on Amazon.”

      yes they do

  • J__o__h__n

    Only the conspiracy enthusiasts are concerned about [fill in the blank of any civil liberty inconvenient to law enforcement] because if you aren’t doing anything wrong you don’t need privacy. Trust us.

  • Matthew Stephenson

    Wouldn’t it be like mail? If I had unopened mail on my person or in my glove box, does the cop have the right to open it and read my correspondence? I can seen the cop finding the phone, but the moment that he just logs in and looks at my stuff without a warrant, is that not a violation?

    • Iraq veteran

      No it’s not really at all. One big difference is that mail violations are specifically regulated by the Feds. Basically, if it’s not sent via the United States Postal Service. It’s not like traditional mail.

  • adks12020

    Nothing in the phone would be relevant to a DWI arrest? Really? What about text messages, pictures, etc. showing evidence, with time stamps, that a person was drinking?

    • http://hlb-engineering.us/ HLB

      Or pics of you canoodling with the sheriff’s wife. Hoober Doober

  • http://hlb-engineering.us/ HLB

    The cloud is the phone. The phone is the network. The network is the zeitgeist. The butterfly is the whale. Ok, good. Got it.

  • http://hlb-engineering.us/ HLB

    Present caller, William reminds me to say: thank heavens for public schooling. Then again, it’s Oklahoma.

    In fairness to Okey Dokies, I went to grade school in Oklahoma and I’m to the left of Noam Chomsky.

    • IsaacWalton

      I’m assuming you didn’t go to public school?

  • adks12020

    Hey caller….being arrested isn’t the same as being convicted.

    • Steve__T

      Have you ever been arrested? It would change your mind.

  • WorriedfortheCountry

    Can they force you to unlock the phone? Thumb swipe?

    • adks12020

      That’s a really good question.

    • Iraq veteran

      No they can’t. The can ask you and they can tell you to do it but they can’t force/ make you do it. In addition I would surmise that the default thumb swipe isn’t or won’t be considered “locked” or “secured”
      Hope that helps.

  • ian berry

    yah good idea; give up your rights.

    • ian berry

      what country is this?

  • JasonB

    That last caller seems to be suffering Stockholme syndrome. you do NOT lose your rights when arrested. Innocent until proven guilty.

    • J__o__h__n

      His arrest and conviction would be a 5 min episode of Law & Order.

    • http://hlb-engineering.us/ HLB

      Stockholm, Oklahoma. Between Odessa, TX and Moscow, ID.

    • Steve__T

      You may not loose them , but try exercising them while hand-cuffed and locked in a 8×5 cell.

  • AliceOtter33

    No search & seizure of information stored within a digital device without a warrant. Period.

    If securing a warrant takes too long, that’s another discussion for another day.

    Meanwhile, it’s worth noting that whatever evidence the police collects will have to be processed like any other – and it ain’t cheap.

    Katy Waldman wrote a Slate article on the current *400,000* unprocessed rape kits in the US and noted that”digital forensic analysis—of a single computer—might set a department back $5,000, while the average cost of processing any case with DNA evidence is $1,397.” (http://www.slate.com/blogs/xx_factor/2014/03/12/unprocessed_rape_kits_cost_concerns_can_t_explain_the_400_000_kit_backlog.html)

    How about putting more resources into all the *legally* collected evidence already in existence?

  • http://hlb-engineering.us/ HLB

    “The justices are so smart..” Hey, what’s the over/under on that line? I’ll take Lil’ Abner and 4 findings.

  • keruffle

    If cops have my phone
    They know where I roam
    What I own
    Everyone I’ve known
    Basically,
    They’re in my home!

  • J__o__h__n

    “Even with a warrant . . . ” – fine, get a warrant.

  • Scott B

    Sorry, but having been stopped at DWI checkpoints (don’t drink, so not an issue) they had me out of the car ad reached WAAAAAY back into back seat to get my pool cue bag. That’s “within reach” First off, I hadn’t even been tested for sobriety, so they had no cause to believe I was drinking. Second, even after passing their tests, and being frisked, it’s a pool cue bag. Was I supposed to be carrying inch diameter tube of booze or pot? I was wondering about the cops because I had to tell the cop, turning my case over and over, “It’s the end with the zipper.” And Third, it was 60′s muscle car. I’m a few inches over 6′ tall and have a fairly large wingspan, so to speak, and my back seat is not within easy reach, and certainly not the cops I was towering over heightwise. My “possible crime”, near as I can figure:, was driving a muscle car and having long hair. Meanwhile I saw two cars that I know who owned them, and if they were out driving at 2am on a weekend had at least 2 DUI’s and one of them would have a baggie of some illegal substance. It was kind of gratifying informing the cops of that after they detained me and my date for 20 minutes.

    • http://neilblanchard.blogspot.com/ Neil Blanchard

      A pool cue bag looks a lot like a rifle.

      • Scott B

        No. SKINNY bag. Rifle bags are about +4 feet long and fairly wide, and it would be heavy when lifted because cues aren’t made of metal, guns are, Go to Walmart and put a rifle bag next to a soft cue case. The cue bag is a bit over 2′ long, 4″ wide, not thick, opens from one end, and weighs under 2lbs with the cue and chalk in it.

        One top of that, carrying a gun in a case is legal.

        And further, the cop asked what was in the pool cue bag, to which I said, “it’s a pool cue bag. A pool cue.” So they knew it was a pool cue bag.

        • http://neilblanchard.blogspot.com/ Neil Blanchard

          You are splitting hairs – how can a police officer be sure of anything in the dark? There are lots of things that qualify as unreasonable search, but at a DWI checkpoint some things will need to be checked.

          • Scott B

            No I’m not splitting hairs

            The points are :

            The law says I can carry a gun in my vehicle, and this was almost 30 years ago, so it didn’t matter what kind of gun I had in a case. What gun is going to fit in a 2′ x 4″ x 3″ soft-side case with a 6″ zipper at one end?

            The law also says “within reach”, which it was not. It wasn’t even within easy view.

            It was CLEARLY pool cue case, the cops even referred to as a pools cue case when they asked what was in the pool cue case.

            I wasn’t speeding, wasn’t weaving, wasn’t getting mouthy when the cops addressed me, the car was all legal.

            What it was was me being profiled for being a young adult male with long
            hair and earrings, and driving in a car. Meanwhile the buzz-cut , 40yo
            pot & coke dealer in the generic import got waved right on through.

          • http://neilblanchard.blogspot.com/ Neil Blanchard

            Can *anyone* carry *any* kind of gun in their cars?

            People have been shot because they held their wallet in their hand.

            DWI stops are often A) random or B) all inclusive.

          • Scott B

            That varies from state to state. In NY, long arms have to be unloaded when in the vehicle, but you can pretty much have them in the vehicle anywhere.

            Handgun laws tend to vary more widely, I have trucker friends that carry handgun in their rigs and can have a loaded gun within reach state after state after state, then they’ll hit a state where they have to lock up the gun.

          • JasonB

            The DWI search is nothing more than the excuse for cops to search anyone and everyone’s car for any reason whatsoever. It is a smokescreen for a fishing expedition. Nothing more.

      • JasonB

        And if I’m legally allowed to carry a rifle in my car?

        • http://neilblanchard.blogspot.com/ Neil Blanchard

          Then you’d need to show them the rifle and a license, if required.

          • JasonB

            most states don’t require a license to own a rifle. I think the point is that DUI checkpoint can very easily become a fishing expedition for any and every crime. The fact is that these checkpoints do a very poor job of catching people who have been drinking while doing a fantastic job of hiding the activity of profiling.

          • http://neilblanchard.blogspot.com/ Neil Blanchard

            It is inside a bag. Is it a rifle, or an semi-automatic weapon?

            DWI stops are there to prevent drunk driving, and if they also catch other problems, then fine.

          • JasonB

            Let’s just throw out all of the constitution. Sounds like you would be fine with that.

          • http://neilblanchard.blogspot.com/ Neil Blanchard

            You are putting words in my mouth.

            A DWI stop is far less intrusive than a search of a smart phone.

          • JS

            Not at all. All they get from me at a DWI search is my blood alcohol level.. Search my phone and they have access to all my emails, transactions, and movements. All my pictures, associations, etc. Much more intrusive and a warrant is definitely needed.

          • JasonB

            That is not true. At a DWI stop your car can be searched whether you have done anything wrong or not. The cops bend the law at these stops in ways that you can’t imagine. They are not looking for drunk drivers at these stops. That’s just a smoke screen.

          • http://neilblanchard.blogspot.com/ Neil Blanchard

            Okay, then they need to be called on over reach. Seizing a cell phone is also overreach, right?

          • Scott B

            The cop chalk it up to “reasonable suspicion”. They tried that tired line on me umpteen times. It wasn’t my first rodeo.

            I never had anything to hide, and sometimes it was just easier to let them look. But it was also satisfying to let them know that I know my rights, then listened to them spit and sputter as they tried to come up with a legit reason for wanting to see what was in my trunk, let alone stopping me.

          • Scott B

            There was NOTHING that suggested I was drunk or anything illegal being carried. If I had beer labels plastering my windows like they were decals, or I was waist deep in spent shell, or even a headlight out, I could understand the attention I was getting. But it was me, my girlfriend, my pool cue case, and her purse, that was it.

          • http://neilblanchard.blogspot.com/ Neil Blanchard

            That is the point of random or blanket DWI checkpoints – you do not have to have probably cause; because not all drunks weave, etc. And the point is to *prevent* drunk driving by making it possible there will be a DWI checkpoint. In other words, if you are driving drunk, w/o the checkpoint, the chances are you would not cross paths with the police, just by luck.

            The point is to prevent drunk drivers; not just to arrest them after they are already drunk.

            And we are off topic …

          • Scott B

            When they asked me where I was coming from, I told them the restaurant’s name (along the lines of an IHOP, no alcohol served there in any form), which literally EVERY cop in the area went to for their breaks. Then the cop asked if I had had anything to drink. I said, “Yeah. Coffee. It’s a restaurant, not a bar.”

          • Scott B

            All states let you carry a firearm in your vehicle. How are you supposed to get it home from the gun shop, or to the shooting range, hunt area, etc.

            NYS law allows for carrying a rifle or shotgun openly, such as in a gun rack. All firearms are required to be unloaded when in a vehicle.

            NYS only requires people that own handguns to have gun licenses.

      • brettearle

        `Member Oswald’s Venetian Blinds?

    • hennorama

      Scott B — as [Neil Blanchard] pointed out below, it’s likely the officer was concerned that the bag contained a firearm. I would imagine a law enforcement officer to be more motivated to potentially confiscate a weapon in comparison to a baggie of some illegal substance.

      A driver who was DUI is another matter, of course, as in combination with a vehicle, they also might be considered to be a dangerous weapon.

      • JasonB

        In many states drivers are legally allowed to carry a firearm

        • hennorama

          JasonB — absolutely, and especially long guns, which one can openly carry in 44 states. Some states require that the long gun be unloaded, and there are also some restrictions on how a long gun can be legally carried in a vehicle, which also vary by state.

  • J__o__h__n

    “If there is no crime there is no foul” – so much for privacy rights.

  • Bill98

    “Don’t put it on the phone if you are gonna be a criminal”. Hey sheriff, no one is a criminal when they are stopped by the police. They may not even be an accused criminal yet. You are a criminal once convicted in a court of law, and not until then. It’s sad that I have to explain this to a peace officer.

    • WorriedfortheCountry

      I think you are picking nits. The basic definition of a criminal is “someone who has committed a crime”.

      The Sheriff’s warming is along the same vein as this: “criminals” shouldn’t post evidence of their crime up onto Facebook if they don’t want to get caught.

      • J__o__h__n

        Posting something on facebook isn’t private so one should not have an expectation of privacy. The contents of a phone aren’t public.

        • WorriedfortheCountry

          Yes, good distinction and the courts need to clear up the smart phone issue

          My issue was with Bill’s nit with the Sheriff’s words. Bill was assuming criminal == convict. It is clear the Sheriff was using the broader definition so Bill no longer needs to be “sad”.

          • Bill98

            Please see my response to your previous comment. There is plenty to be “sad” about in the sheriff’s statements. Not just for me, but for any law-abiding citizen who happens to own a smart phone.

          • Alchemical Reaction

            Not all those who commit crimes do so KNOWINGLY.

            On some legal website, I saw a video of cops going door to door under a DARE program, asking homeowners to voluntarily allow the cops to search the house.

            An old lady allowed them to search her house, without knowing a joint had fallen out of the pocket of one of her grand son’s friends into the cushions of the sofa.

            The officers found the joint and arrested the grand mother.

            You never know what evidence of criminal activity may be on your cell phone without you even knowing it.

            Go back to school.

      • Bill98

        My point is that I do not have to be a criminal, or have intended to commit a crime, in order for the police to conduct this search. So, he is being disingenuous, to put it kindly, to say that criminals are the only ones who should not keep this information on their phones.

        • WorriedfortheCountry

          Bill, the Sheriff does not determine what is legal search and seizure. He was speaking to the wisdom of storing criminal evidence where it might easily be legally found. That is similar to the facebook analogy I gave.

          What IS legal search and seizure is a completely different matter.

          • Alchemical Reaction

            Yeah, interesting to hear him give advice to the “criminals” who listen to On Point and NPR!

            You need your head examined.

      • TFRX

        Spoken like a true well-enough-off white man.

        You must live in a thinktank.

        • WorriedfortheCountry

          Thinking is fun no matter your economic status or your race. Sometimes, getting tanked is fun too.

          Feel free to try either sometime. You might find it rewarding.

        • brettearle

          Great Line!

      • Alchemical Reaction

        Sorry, but this argument is a logical fallacy. Since ignorance is not a defense.

        If one committed a crime without knowing the act was a crime, how would that individual know not to put evidence of the act on a cell phone?

        The sheriff himself said cops he talked to regarded criminals as being “not too smart”. So, how would some of them even known their actions were “criminal”?

        One could incriminate oneself.

        This is why cell phones need to be regarded as part of “the right to remain silent”, until the cops demonstrate probable cause AND get a warrant.

    • brettearle

      The Sad Truth is that if you are being questioned, stopped, or investigated by the police, you are more often regarded as Guilty until proven Innocent.

  • 65noname

    why does this program have 3-4 professional cop spin artists but only one person who supports privacy rights?
    And why does the announcer keep letting the cop claim that the police would never search inaproriately? and why does the announcer keep letting the cop say that the arresting cop has no interest in deep searches without bothering to point out that even if true, the cop turns the phone over to the cop tech expert who then eawrches the whole phone?
    And, why oh why does the announcer let the cop repeat over and over that the only people who are concerned with the cops searching for “personal” data are “conspiracy theorists”?
    A

    • brettearle

      Because the Announcer, like many of us, have been programmed to be deferential to Cops–in part, because of our own personal and traumatic experiences with Law Enforcement malpractice or abuse; and in part by what we have heard.

      For many, it is almost instinctive to be too accommodating.

      Citizens have been burnt too many times….

  • M S

    It’s sad to see our Presidential candidates ‘anointed’ by billionaires.

  • Steve__T

    And when the police start to practice the law correctly, fairly and justly we wont have to have thees discussions.

  • Iraq veteran

    I was wondering if anyone picked up on the caller that talked about working in mental health and talked about having client info on his phone… He was wondering if it’d be a HIPAA violation or not. I think maybe he’s in violation of HIPAA by having that kind of info on his phone…

    • brettearle

      I would think so.

      But HIPAA can…be…out…of….control.

      I know of HIPAA stories that would make your blood curdle [pun intended]–as far as privacy trumping disclosure is concerned.

      What’s more, there are places where you can’t even confirm the time of a Blood Test appointment, over the telephone….because…..of…..HIPAA!

      • Iraq veteran

        I know that it’s pretty crazy. My mom was a nurse around the time that HIPAA came about. It just seems odd that a medical professional would have any information of that nature on their phone.

        • brettearle

          There’s, likely, more HIPAA violation talk than you could ever imagine.

          But that’s mostly–though not totally– speculation.

          • Iraq veteran

            Indeed.

  • Iraq veteran

    My answer to you would be yes, you do have to be under arrest for the search to become reasonable/ legal. Your phone would also have to in some way be a source of evidence.
    If I follow your situation of being stopped because your vehicle matches the description of a subject vehicle.
    The first order would be to determine who you are. Then it would be to figure out where you’re going and coming from. Generally this is all that needs to be done to know if you are or are not the person we’re looking for. (I feel a jedi joke there somewhere…)
    Once it has been determined that you are not that person you should be released with an apology for the inconvenience. Your phone shouldnt become an issue unless you introduce it.
    Hope this helps.

    • brettearle

      The scenario you portray seems ripe for Abuse.

      No?

      • Iraq veteran

        Absolutely. People abuse things every second of everyday.
        However, the situation needs more information in order to be more accurate. The biggest bit of info would be WHY police would be looking for that vehicle. Is it a gas drive off? Bank robbery? Did it run a stop light? A reasonable search is going to be different for any of those.

        • brettearle

          My life experience has told me that if you are respectfully forthright with law enforcement, your chances of `survival’ increase noticeably….

          • Alchemical Reaction

            True in most cases.

  • Bill98

    There is a case of alleged police brutality in Buffalo, NY, which was recorded on a cell phone. If the police can “search” your cell phone, what would prevent them from deleting this sort of evidence, while they have possession of your phone?

    Here is a link to the story that I mentioned:
    http://wivb.com/2014/04/28/man-speaks-out-after-alleged-police-brutality/

    • Alchemical Reaction

      EXACTLY my concern as well! You have to stream video live to the internet or record it on the cloud so it can’t be found on your cell phone. But if you are somewhere without a signal, that could be a problem.

      Cell phone makers should include a law enforcement over-ride code that gives cops the ability to view text messages and phone calls only, while keeping all other personal data private!

  • Alchemical Reaction

    Encrypt your phones! The right to remain silent applies to information on your cell phone. If your phone is encypted, cops reading information on your phone is the same as forcing you to talk without a lawyer present. If they want onto the phone, let them get a warrant. Then let them pay big money to decrypt the phone.

    • Melvin Frohike

      “Cell phone makers should include a law enforcement over-ride code that gives cops the ability to view text messages and phone calls ”

      This already happens in certain areas. I’d have no issue with an LEO viewing if I’m texting while driving, or holding my phone up while driving. Sadly, this isn’t really what the discussion is about. I don’t want a cop viewing my private banking account information, just for a routine stop. I fully agree with your point. The cop that was on the show sounds like a bigot that thinks everyone on the road is trouble, and doesn’t need any real reason to search their phone for whatever they like. I wouldn’t be shocked if he beats his wife for fun. Seems like a total waste of oxygen to me.

  • Alchemical Reaction

    That brings up the issue of police brutality videos.

  • Alchemical Reaction

    Put the bad guys in jail. Leave the good guys alone. Simple as that.

  • Abu Bakarr Sesay

    I don’t know about a 12 year old cracking a phone password. But my question is whether police can attempt to gain access to a phone by subverting the password protection anyway. For example, let’s say you have your Android phone set to require an unlock code every time the screen goes off. If the police pick up the phone, try to open it, and the phone asks for a password, what are they allowed to do at that point? They can’t force you to tell them your password can they? To use the briefcase analogy, are they allowed to physical break open a briefcase to search inside it without a warrant just because it is within arms reach?

  • Alchemical Reaction

    Surprised no one has mentioned how interesting it was to hear the sheriff give “advice” on how NOT to get caught, to the “criminals” who listen to On Point, WBUR, and NPR.

    LOL!!!

    • Melvin Frohike

      His advice was basically to not break the law. He sounded like a total jerk, and not good at his job. What advice are you talking about?

      • Alchemical Reaction

        He literally said, “if you are going to break the law, probly not a good idea to keep evidence on your phone.”

        Kind of ironic coming from a sheriff.

  • ranndino

    It was amusing to listen to the sheriff talk about the fact that most criminals aren’t particularly savvy and then say he’s never heard of the anyone erasing the contents of their phone remotely. You don’t even need to be some kind of a genius hacker to do that. You just need to have one of many apps that allows you to do that. Avast Antivirus, for example.

    Also, the assertion that if you don’t want your whole life to be accessible to law enforcement without a warrant don’t carry it on your phone is ludicrous. If you have a smartphone you carry your entire life on it pretty much by definition. You’d have to really limit how you use it for that not to be the case.

    • Melvin Frohike

      I thought the same thing. How bad is law enforcement if they don’t realize there are free apps that can do this for you? They should be embarrassed for not knowing what the average 14 year old has downloaded. “Cartels”, lol? The average kid on the block knows how to do this, and it’s not even to break the law. Mr. Ashbrook, you have a great program, but I can’t believe the guests on this one are so naive.

  • Melvin Frohike

    How about checking these cops phones? http://articles.courant.com/2010-11-09/news/hc-windsor-locks-cops1110-20101109_1_state-police-windsor-locks-police-department-police-station

    I bet they think it’s ok to check my pictures and banking accounts, but still think it’s ok to cover up murdering a child on a bike. I’d bet on it, if they wouldn’t then threaten to search my phone for saying betting is illegal.

    Here’s the follow up, where the pig in question appears to be filing a lawsuit after helping his son commit murder: http://www.nbcconnecticut.com/news/local/Robert-Koistinen-Windsor-Locks-Henry-Dang-Crash-Michael-Bicycle-Lawsuit-249056481.html

    This isn’t even some random conspiracy nonsense. This is covered by both liberal and conservative media sources, and is shown what cops without proper oversight will do.

    If you search my phone, or my laptop, because it’s a traffic stop or for any reason that isn’t important enough to do so immediately without a warrant, I will sue you in civil court, and you will lose your house.

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