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Thread: 2011 in Review, Search Incident to Arrest, not now so narrow exception to Fourth Amen

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    Herr Heckler Koch
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    2011 in Review, Search Incident to Arrest, not now so narrow exception to Fourth Amen

    https://www.eff.org/deeplinks/2011/11/year-smartphone
    Quote Originally Posted by Hanni Fakhoury, EFF.org
    The Fourth Amendment's prohibition against warrantless searches and seizures applies to cell phones, and EFF has long advocated for the police to come back with a warrant before searching a cell phone. But in January 2011, the California Supreme Court ruled in People v. Diaz (PDF), that the police were authorized to search any person's cell phone, without a warrant, after they had been arrested under the narrow "search incident to arrest" exception to the Fourth Amendment, that permits a brief search in the area immediately around a person for the purposes of officer safety and protection of evidence from immediate destruction.

    We predicted Diaz would create routine privacy violations, and worried that officers could use a pretextual arrest to casually browse the data on a person's cell phone for any reason, even if that person is never charged with a crime. We weren't the only ones worried. In April, California Senator Mark Leno introduced a bill intending to revserse Diaz and require the police to obtain a warrant before searching a cell phone incident to arrest. Sponsored by the ACLU of Northern California, and supported by an EFF Action Alert, the bill passed through both houses of the California legislature before being vetoed by Governor Jerry Brown. As Governor Brown explained it (PDF), "Courts are better suited to resolve the complex and case specific issues relating to constitutional search-and-seizure protections." Yet, courts across the country have been struggling to deal with this issue. The Ohio Supreme Court, interpreting the same "constitutional search-and-seizure" protections as the California Supreme Court in Diaz, reached the opposite conclusion, prohibiting warrantless cell phone searches. Faced with this conflict of opinion, the United States Supreme Court, a week before Governor Brown's veto message, declined to review the Diaz opinion.

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    Regular Member Beretta92FSLady's Avatar
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    SCOTUS refusing to allow this issue at the Bench speaks to their view that this is a state issue, not a Federal issue. Where do we draw the line in Federal v. State issues? You either are for an efficient Federal Government, or an efficient state government. The Constitution is pro-efficient Federal Government, at the expense of the states. So, the Federal Government, as it tickles their fancy, will decide to Bench the case, or not.
    I don't mind watching the OC-Community (tea party 2.0's, who have hijacked the OC-Community) cannibalize itself. I do mind watching OC dragged through the gutter. OC is an exercise of A Right. I choose to not OC; I choose to not own firearms. I choose to leave the OC-Community to it's own self-inflicted injuries, and eventual implosion. Carry on...

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    Regular Member rodbender's Avatar
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    Quote Originally Posted by Beretta92FSLady View Post
    SCOTUS refusing to allow this issue at the Bench speaks to their view that this is a state issue, not a Federal issue. Where do we draw the line in Federal v. State issues? You either are for an efficient Federal Government, or an efficient state government. The Constitution is pro-efficient Federal Government, at the expense of the states. So, the Federal Government, as it tickles their fancy, will decide to Bench the case, or not.
    SCOTUS only takes cases that 4 justices want to hear. If less than 4 want to hear it, it doesn't get bench time. It has nothing to do with them thinking it is a States rights issue or not. Study at least a little bit before you make a comment you know little or nothing about, please.
    The thing about common sense is....it ain't too common.
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    Founder's Club Member PrayingForWar's Avatar
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    Quote Originally Posted by Beretta92FSLady View Post
    SCOTUS refusing to allow this issue at the Bench speaks to their view that this is a state issue, not a Federal issue. Where do we draw the line in Federal v. State issues? You either are for an efficient Federal Government, or an efficient state government. The Constitution is pro-efficient Federal Government, at the expense of the states. So, the Federal Government, as it tickles their fancy, will decide to Bench the case, or not.
    The Constitution is "pro-efficient" fed-gov at the expense of the states? Stick too Rustoleum my dear, the cheap $#!t is doing too much damage. The Constitution limits federal power, there's nothing in there that addresses "efficiency", or the feds exersizing anything at the expense of the state.
    If you ladies leave my island, if you survive recruit training. You will become a minister of death, PRAYING FOR WAR...

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    Regular Member Beretta92FSLady's Avatar
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    Quote Originally Posted by rodbender View Post
    SCOTUS only takes cases that 4 justices want to hear. If less than 4 want to hear it, it doesn't get bench time. It has nothing to do with them thinking it is a States rights issue or not. Study at least a little bit before you make a comment you know little or nothing about, please.

    I see. So SCOTUS is not making a statement when they do not Bench an issue.
    I don't mind watching the OC-Community (tea party 2.0's, who have hijacked the OC-Community) cannibalize itself. I do mind watching OC dragged through the gutter. OC is an exercise of A Right. I choose to not OC; I choose to not own firearms. I choose to leave the OC-Community to it's own self-inflicted injuries, and eventual implosion. Carry on...

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    Regular Member OC for ME's Avatar
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    ....burn phone....
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    Regular Member SFCRetired's Avatar
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    I'm not a techno-geek, but I just looked at my phone and it has the capability of being password protected. It would seem to me that it would then take a search warrant to force you to give up the password. Or is there some way of getting around the password that I am not aware of?

    It also seems to me, and I'm not a lawyer either, that if there is a way to get around the password and the police use it without a warrant, any evidence so obtained would be inadmissible in court.

    Some of you techs and lawyers please tell me if I am wrong.

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    Regular Member William Fisher's Avatar
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    Quote Originally Posted by SFCRetired View Post
    I'm not a techno-geek, but I just looked at my phone and it has the capability of being password protected. It would seem to me that it would then take a search warrant to force you to give up the password. Or is there some way of getting around the password that I am not aware of?

    It also seems to me, and I'm not a lawyer either, that if there is a way to get around the password and the police use it without a warrant, any evidence so obtained would be inadmissible in court.

    Some of you techs and lawyers please tell me if I am wrong.
    Make like Hillary during Whitewater scandal hearings when they ask you for the password. "I'm sorry, I don't remember". Of course they'll know you're full of it but no one can prove that you do remember.
    I also think someone on another thread posted something about incrypting your phone for that purpose. Just press a couple of keys and bingo, Phone needs password to be turn on again.
    Last edited by William Fisher; 01-01-2012 at 12:07 AM.

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    Regular Member Dreamer's Avatar
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    Quote Originally Posted by Beretta92FSLady View Post
    SCOTUS refusing to allow this issue at the Bench speaks to their view that this is a state issue, not a Federal issue. Where do we draw the line in Federal v. State issues? You either are for an efficient Federal Government, or an efficient state government. The Constitution is pro-efficient Federal Government, at the expense of the states. So, the Federal Government, as it tickles their fancy, will decide to Bench the case, or not.

    Actually, the Constitution and Bill of Rights is exactly the opposite. They are clearly worded to place severe and strict LIMITS on Federal authority, and to give almost ALL powers and authority to the States and to individuals, while clearly delineating that the Federal Government has an extremely limited scope of authority.

    How anyone can see the Constitution and BoR as setting up wide-ranging Federal authority and restricting the States is beyond me.

    The Feds have gained most of their "authority" through fraud, activist courts setting Case Precedent, and by passing illegal, unconstitutional Codes.

    The "Interstate Commerce Clause" has been used by the Fed to snatch authority from the States and rights from individuals on topics ranging from duck hunting to the selling of raw milk, and is, in almost every case, a gross over-reach of authority....
    It is our cause to dispel the foggy thinking which avoids hard decisions in the delusion that a world of conflict will somehow mysteriously resolve itself into a world of harmony, if we just don't rock the boat or irritate the forces of aggression—and this is hogwash."
    --Barry Goldwater, 1964

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    Regular Member Dreamer's Avatar
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    Quote Originally Posted by William Fisher View Post
    Make like Hillary during Whitewater scandal hearings when they ask you for the password. "I'm sorry, I don't remember". Of course they'll know you're full of it but no one can prove that you do remember.

    I bet they'd remember if they were waterboarded...
    It is our cause to dispel the foggy thinking which avoids hard decisions in the delusion that a world of conflict will somehow mysteriously resolve itself into a world of harmony, if we just don't rock the boat or irritate the forces of aggression—and this is hogwash."
    --Barry Goldwater, 1964

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    Regular Member Beretta92FSLady's Avatar
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    Quote Originally Posted by Dreamer View Post
    Actually, the Constitution and Bill of Rights is exactly the opposite. They are clearly worded to place severe and strict LIMITS on Federal authority, and to give almost ALL powers and authority to the States and to individuals, while clearly delineating that the Federal Government has an extremely limited scope of authority.

    How anyone can see the Constitution and BoR as setting up wide-ranging Federal authority and restricting the States is beyond me.

    The Feds have gained most of their "authority" through fraud, activist courts setting Case Precedent, and by passing illegal, unconstitutional Codes.

    The "Interstate Commerce Clause" has been used by the Fed to snatch authority from the States and rights from individuals on topics ranging from duck hunting to the selling of raw milk, and is, in almost every case, a gross over-reach of authority....
    Then you will have no issue with providing for us all where it actually states that in the Constitution.
    I don't mind watching the OC-Community (tea party 2.0's, who have hijacked the OC-Community) cannibalize itself. I do mind watching OC dragged through the gutter. OC is an exercise of A Right. I choose to not OC; I choose to not own firearms. I choose to leave the OC-Community to it's own self-inflicted injuries, and eventual implosion. Carry on...

  12. #12
    Herr Heckler Koch
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    The United States Constitution is a grant of limited power to the government, with certain explicit prohibitions. The government has arrogated power beyond its grant.

    We soup-frogs were born in the scalding water of security, when the heat is turned up to suffocating tyranny some commend the reasonableness of the tyrant not boiling us to death.
    Last edited by Herr Heckler Koch; 01-02-2012 at 04:18 PM.

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    Regular Member Beretta92FSLady's Avatar
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    Post

    Quote Originally Posted by Herr Heckler Koch View Post
    The United States Constitution is a grant of limited power to the government, with certain explicit prohibitions. The government has arrogated power beyond its grant.

    We soup-frogs were born in the scalding water of security, when the heat is turned up to suffocating tyranny some commend the reasonableness of the tyrant not boiling us to death.
    Did I miss something - is your response a specific reference to the terminology of the Constitution?

    Or are you merely offering your opinion that the Constitution grants limited power to the Government? Sometime I think that individuals on here mistaken the Articles of Confederation with the United States Constitution. I sure hope that individuals are aware that the Articles of Confederation, and the United States Constitution ARE NOT the same documents.
    I don't mind watching the OC-Community (tea party 2.0's, who have hijacked the OC-Community) cannibalize itself. I do mind watching OC dragged through the gutter. OC is an exercise of A Right. I choose to not OC; I choose to not own firearms. I choose to leave the OC-Community to it's own self-inflicted injuries, and eventual implosion. Carry on...

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    Regular Member rodbender's Avatar
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    Quote Originally Posted by Beretta92FSLady View Post
    I see. So SCOTUS is not making a statement when they do not Bench an issue.
    Yes, they are making a statement. They are saying, "We are not going to hear this case".
    The thing about common sense is....it ain't too common.
    Will Rogers

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    Regular Member rodbender's Avatar
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    Quote Originally Posted by Beretta92FSLady View Post
    Then you will have no issue with providing for us all where it actually states that in the Constitution.
    Back to original intent, Missy. Do your own leg work.
    The thing about common sense is....it ain't too common.
    Will Rogers

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    Quote Originally Posted by SFCRetired View Post
    I'm not a techno-geek, but I just looked at my phone and it has the capability of being password protected. It would seem to me that it would then take a search warrant to force you to give up the password. Or is there some way of getting around the password that I am not aware of?

    It also seems to me, and I'm not a lawyer either, that if there is a way to get around the password and the police use it without a warrant, any evidence so obtained would be inadmissible in court.

    Some of you techs and lawyers please tell me if I am wrong.
    It is flagrantly unconstitutional, but technically trivial, to see everything on your phone no matter how you protect it.

    http://www.thenewspaper.com/news/34/3458.asp

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    Regular Member Beretta92FSLady's Avatar
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    Quote Originally Posted by rodbender View Post
    Back to original intent, Missy. Do your own leg work.
    And I was looking forward to being enlightened by you.
    I don't mind watching the OC-Community (tea party 2.0's, who have hijacked the OC-Community) cannibalize itself. I do mind watching OC dragged through the gutter. OC is an exercise of A Right. I choose to not OC; I choose to not own firearms. I choose to leave the OC-Community to it's own self-inflicted injuries, and eventual implosion. Carry on...

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    Regular Member VW_Factor's Avatar
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    heerrrrrr derrrr.. p

    Time for some more custom ROMs.
    Quote Originally Posted by Beretta92FSLady
    I am no victim, just a poor college student who looks to the day where the rich have the living piss taxed out of them.

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    Regular Member rodbender's Avatar
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    Quote Originally Posted by Beretta92FSLady View Post
    And I was looking forward to being enlightened by you.
    Actually, I suspect you were looking forward to the fruits of my labor and money, like all other liberals. Ain't gonna happen, Missy.
    The thing about common sense is....it ain't too common.
    Will Rogers

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    Founder's Club Member PrayingForWar's Avatar
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    Quote Originally Posted by rodbender View Post
    Actually, I suspect you were looking forward to the fruits of my labor and money, like all other liberals. Ain't gonna happen, Missy.
    THANKS A LOT!!!

    I shot beer through my nose and have too clean the keyboard now.
    If you ladies leave my island, if you survive recruit training. You will become a minister of death, PRAYING FOR WAR...

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    Regular Member Fallschirmjäger's Avatar
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    Quote Originally Posted by Beretta92FSLady View Post
    The Constitution is pro-efficient Federal Government, at the expense of the states. So, the Federal Government, as it tickles their fancy, will decide to Bench the case, or not.
    DuhWHA?
    " The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

    How is PROHIBITING the federal government from doing anything not specifically delegated to it 'pro-efficient'? It means the States decide all the issues NOT specifically delegated to the Federal Government.


    The fact that the commerce clause has been a MASSIVE Federal government power grab notwithstanding. But hey, I guess the Fed just wanted to become less powerful, and less efficient?



    Seriously... that's almost as bad as some idiot saying they want to tax the rich so they won't have any money. Who's gonna hire people, the bum on the street?
    Last edited by Fallschirmjäger; 01-06-2012 at 12:49 AM.

  22. #22
    Regular Member rodbender's Avatar
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    Quote Originally Posted by PrayingForWar View Post
    THANKS A LOT!!!

    I shot beer through my nose and have too clean the keyboard now.
    Sorry, dude. Wasn't my original intent.
    Last edited by rodbender; 01-06-2012 at 10:04 AM.
    The thing about common sense is....it ain't too common.
    Will Rogers

  23. #23
    Regular Member Beretta92FSLady's Avatar
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    Quote Originally Posted by rodbender View Post
    Actually, I suspect you were looking forward to the fruits of my labor and money, like all other liberals. Ain't gonna happen, Missy.
    LMFAO! I am at the library, laughing my a$$ off!
    I don't mind watching the OC-Community (tea party 2.0's, who have hijacked the OC-Community) cannibalize itself. I do mind watching OC dragged through the gutter. OC is an exercise of A Right. I choose to not OC; I choose to not own firearms. I choose to leave the OC-Community to it's own self-inflicted injuries, and eventual implosion. Carry on...

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    If you have an IPhone its quite simple. Under settings password protect your phone and after you feel comfortable that you can remember it you set it to auto delete all content after 4 failed password attempts. Yes this is an actual setting on the phone. Glad I scrapped my flip phone lol.

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    Quote Originally Posted by smokeyburnout View Post
    If you have an IPhone its quite simple. Under settings password protect your phone and after you feel comfortable that you can remember it you set it to auto delete all content after 4 failed password attempts. Yes this is an actual setting on the phone. Glad I scrapped my flip phone lol.
    Hmmmm. I wonder if a phone can be set up to auto-delete with a certain password. One password for access, one password for access plus auto-delete.

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