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Thread: Ca. Supreme Court Rules 4A no longer valid in Ca.

  1. #1
    Campaign Veteran since9's Avatar
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    Ca. Supreme Court Rules 4A no longer valid in Ca.

    Well, not exactly, but they certainly left it in tatters. The California Supreme Court did rule that since it's on your person, a cell phone is subject to search and seizure by law enforcement without a warrant.

    I would have argued that most cell phones only store the PIN and a unique number on the card in the phone, and that all text messages, numbers, etc. are stored OFF one's person in the databases of the phone company. Just because information is accessible via a device on one's person doesn't mean the information itself is on one's person.

    By their arguement, however, if I carried a laptop in California, 100% of everyone I'd done online would be open to their review, whether it was MSN, Yahoo, GMail, or some e-mail service in Germany?

    NOT!

    I really hope this one is overturned by a Federal Appeals court, and FAST. As the article says:

    "Rasch, former head of the Justice Department's computer crime unit, pulled no punches in his reaction to the ruling. "This ruling isn't just wrong, it's dangerous," said Rasch, now director of cybersecurity and privacy at computer security firm CSC in Virginia. "It's remarkable, because it simply misunderstands the nature of these devices."

    Bingo. Expect to hear more of this.

    In the meantime, I strongly recommend you password encrypt your phones, and if you have a laptop and the capability of encrypting your files, such as with Microsoft's BitLocker (available in Vista and Windows 7 Ultimate versions), do so.
    Last edited by since9; 01-05-2011 at 06:23 AM.
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  2. #2
    Campaign Veteran Bookman's Avatar
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    Thanks for the heads up!
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    Searches incident to arrest are necessary for two reasons. First, items which would present a danger to the officer or the arrestee need to be found and neutralized. Second, the persons belongings need to be inventoried, allowing its return to the arrestee or someone he designates.

    So, it is reasonable to seize a datebook and flip through it. There may be something in it that needs to be identified for the above two reasons. In the process of doing this lawful inspection, some information might come to light that was not specifically searched for. This information should not be excluded as it would have been in plain sight as the officer was performing a lawful inspection.

    Now, it is also reasonable to seize a cell phone and inspect it for the above two reasons. That inspection would reasonably include removing the cover and looking inside. However, looking through the data on the phone could not possibly satisfy either of the two goals listed above. Looking through the data could serve a single purpose: a search for evidence, and that requires a warrant.

    Since the phone is lawfully seized incident to arrest, there would be plenty of time to get a warrant if it can be demonstrated to a judge that there is probable cause to believe that there is evidence of a crime on it.

    So, this is a bad ruling, but the first post is still a bit deceptive. The first paragraph gives the distinct impression that any phone is subject to search. What the court ruled (incorrectly IMO) was that phones on the the person of someone being arrested were. The deception in the thread title is beyond the pale.

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    Regular Member Nevada carrier's Avatar
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    I already keep my PC hard drives encrypted, and so should everyone else, especially those like us who are very likely on the radar for participating in activism that is counter to the interests of a tyrannical, totalitarian, police state government

  5. #5
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    Quote Originally Posted by eye95 View Post
    Searches incident to arrest are necessary for two reasons. First, items which would present a danger to the officer or the arrestee need to be found and neutralized. Second, the persons belongings need to be inventoried, allowing its return to the arrestee or someone he designates.
    Indeed, searches to inventory are needed. They should be conducted by a third party who is not a police officer, and does not have anything to do with the arrest. If the police would like to search anything being inventoried, they may get a warrant and do so.

    The Terry stop allows for checking for weapons immediately available that may pose a danger to the officer. I don't think it should be allowed as a pretext for finding contraband, and there's certainly a difference between engaging in a Terry weapons check versus flipping through a cell phone, laptop, date book, etc.

    So, it is reasonable to seize a datebook and flip through it. There may be something in it that needs to be identified for the above two reasons. In the process of doing this lawful inspection, some information might come to light that was not specifically searched for. This information should not be excluded as it would have been in plain sight as the officer was performing a lawful inspection.
    I included a manner by which the inventory was possible without spoiling evidence and without leading to pretext.

    Now, it is also reasonable to seize a cell phone and inspect it for the above two reasons. That inspection would reasonably include removing the cover and looking inside. However, looking through the data on the phone could not possibly satisfy either of the two goals listed above. Looking through the data could serve a single purpose: a search for evidence, and that requires a warrant.
    Again, that inspection should be done by a third party, not an officer, and not someone involved in potential prosecution.

    Since the phone is lawfully seized incident to arrest, there would be plenty of time to get a warrant if it can be demonstrated to a judge that there is probable cause to believe that there is evidence of a crime on it.

    So, this is a bad ruling, but the first post is still a bit deceptive. The first paragraph gives the distinct impression that any phone is subject to search. What the court ruled (incorrectly IMO) was that phones on the the person of someone being arrested were. The deception in the thread title is beyond the pale.
    The court has previously ruled that a stop is a form of arrest. This ruling essentially means any phone *is* subject to search upon stop. Fortunately for me, my phone has a coded lock and wipes after a number of incorrect passwords (corporate policy). If I 'forget' my password, there's not a lot they can do about it.
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