POTUS to SCOTUS, The 4th Amendment and warrantless cell phone searches

[jpmuscle]

It seems they just can't help themselves. Now following a lawful arrest and whilst pursuant to an investigation relevant to the arrest then maybe. But I can't help but foresee this being utilized as the justification for at times being used as a fishing expedition, therefore abused, and a further tumble down an already slippery slope.


http://www.washingtonpost.com/blogs/the-switch/wp/2013/08/19/obama-administration-asks-supreme-court-to-allow-warrantless-cellphone-searches/




If the police arrest you, do they need a warrant to rifle through your cellphone? Courts have been split on the question. Last week the Obama administration asked the Supreme Court to resolve the issue and rule that the Fourth Amendment allows warrantless cellphone searches.

In 2007, the police arrested a Massachusetts man who appeared to be selling crack cocaine from his car. The cops seized his cellphone and noticed that it was receiving calls from “My House.” They opened the phone to determine the number for “My House.” That led them to the man’s home, where the police found drugs, cash and guns.


The defendant was convicted, but on appeal he argued that accessing the information on his cellphone without a warrant violated his Fourth Amendment rights. Earlier this year, the First Circuit Court of Appeals accepted the man’s argument, ruling that the police should have gotten a warrant before accessing any information on the man’s phone.

The Obama Administration disagrees. In a petition filed earlier this month asking the Supreme Court to hear the case, the government argues that the First Circuit’s ruling conflicts with the rulings of several other appeals courts, as well as with earlier Supreme Court cases. Those earlier cases have given the police broad discretion to search possessions on the person of an arrested suspect, including notebooks, calendars and pagers. The government contends that a cellphone is no different than any other object a suspect might be carrying.

But as the storage capacity of cellphones rises, that position could become harder to defend. Our smart phones increasingly contain everything about our digital lives: our e-mails, text messages, photographs, browser histories and more. It would be troubling if the police had the power to get all that information with no warrant merely by arresting a suspect.

On the other hand, the Massachusetts case involves a primitive flip-phone, which could make this a bad test case. The specific phone involved in this 2007 incident likely didn’t have the wealth of information we store on more modern cellphones. It’s arguably more analogous to the address books and pagers the courts have already said the police can search. So, as Orin Kerr points out, if the Supreme Court ruled on the case, it would be making a decision based on “facts that are atypical now and are getting more outdated every passing month.”

[Belmont31R]

A warrant isn't that hard to get. They do roadside warrants for other things already. But I wouldn't be surprised to see cell phone digging be accepted as ok just because the person is detained/arrested. It's just too juicy of a item these days.

Heck they allow dogs, which can easily be trained to give false alerts, to be used as PC for searches.

[SeriousStudent]

A smart person sets their phone to do a factory reset after a specific number of bad passwords are attempted.

Gosh, I just suck at remembering numbers when I'm under stress. Lots of people are probably the same way. Darn shame, really.

Just for the record, I am WAY more concerned about Louie Lightfingers stealing my phone and using it, than a LEO searching it. I'm just boring and pretty uninteresting to most cops.

[ABNAK]

A warrant isn't that hard to get. They do roadside warrants for other things already. But I wouldn't be surprised to see cell phone digging be accepted as ok just because the person is detained/arrested. It's just too juicy of a item these days.

Heck they allow dogs, which can easily be trained to give false alerts, to be used as PC for searches.

Sooner or later SCOTUS will rule this admissible, as well as info gleaned from the NSA bullshit (DEA has been "leaking" it for years we have come to find out)......then they won't have to issue guidelines on how to cover up the fact of where the info was obtained from.

It will take juries to nullify this shit on a large scale before it stops, but such a widespread use of nullification will never happen.

[Alaskapopo]

A warrant isn't that hard to get. They do roadside warrants for other things already. But I wouldn't be surprised to see cell phone digging be accepted as ok just because the person is detained/arrested. It's just too juicy of a item these days.

Heck they allow dogs, which can easily be trained to give false alerts, to be used as PC for searches.

False hits tear up a dogs credibility. Most dog handlers I know want to know you have good PC before they will use their dog because they don't want its record hurt which means less credibility with the court in the future. I have seen no evidence anywhere to support K9 handlers training their dogs to give false hits. Also warrants are not easy to get. A judge or magistrate has to find PC in your affidavit or oral testimony. If its not there they won't issue it. Judges hate being reversed and embarrassed on appeal. Also unless your on the radar for drug trafficking your not likely to have your phone even bothered with such as on a typical DUI arrest. Unless drugs were found in your vehicle.
Pat

[thopkins22]

False hits tear up a dogs credibility. Most dog handlers I know want to know you have good PC before they will use their dog because they don't want its record hurt which means less credibility with the court in the future. I have seen no evidence anywhere to support K9 handlers training their dogs to give false hits. Also warrants are not easy to get. A judge or magistrate has to find PC in your affidavit or oral testimony. If its not there they won't issue it. Judges hate being reversed and embarrassed on appeal. Also unless your on the radar for drug trafficking your not likely to have your phone even bothered with such as on a typical DUI arrest. Unless drugs were found in your vehicle.
Pat

When I was volunteering with HPD, there were no records whatsoever regarding false positives from the dogs. It was maintained that they couldn't know that the dog "didn't hit on something that had been there minutes before, and therefor we trust that the dog was right even if our subsequent search yields nothing."

It's excellent that records of these things are kept in your AO, but they sure aren't everywhere.

[Belmont31R]

False hits tear up a dogs credibility. Most dog handlers I know want to know you have good PC before they will use their dog because they don't want its record hurt which means less credibility with the court in the future. I have seen no evidence anywhere to support K9 handlers training their dogs to give false hits. Also warrants are not easy to get. A judge or magistrate has to find PC in your affidavit or oral testimony. If its not there they won't issue it. Judges hate being reversed and embarrassed on appeal. Also unless your on the radar for drug trafficking your not likely to have your phone even bothered with such as on a typical DUI arrest. Unless drugs were found in your vehicle.
Pat

Yeah because if I trained my dog to alert on command Id make a video of it and post it to YouTube. Dogs are unreliable, anyways, and are still animals.

http://www.cato.org/blog/clever-hans-vs-fourth-amendment

Warrants are hard to get? We've seen countless examples of judges rarely refusing a warrant. Seems like that signature is no more difficult than exiting a Costco and getting the highlighter swipe.

http://www.salon.com/2012/11/23/a_dwi_offer_you_cant_refuse/

[Alaskapopo]

Yeah because if I trained my dog to alert on command Id make a video of it and post it to YouTube. Dogs are unreliable, anyways, and are still animals.

http://www.cato.org/blog/clever-hans-vs-fourth-amendment

Warrants are hard to get? We've seen countless examples of judges rarely refusing a warrant. Seems like that signature is no more difficult than exiting a Costco and getting the highlighter swipe.

http://www.salon.com/2012/11/23/a_dwi_offer_you_cant_refuse/

Dogs have a proven record of reliability with the court. The reason warrants are rarely refused is most officers know when they have enough to get one and don't bother to try when they know the case is weak.

First link
The Cato Institute is an American libertarian think tank headquartered in Washington, D.C.. Not going to consider that source.
Second link deals with DUI stops which is covered under implied consent laws. When you get your license you are signing that you will give a breath or blood sample when stopped by an officer for certain offenses.

Pat

[glocktogo]

Warrants are hard to get? We've seen countless examples of judges rarely refusing a warrant. Seems like that signature is no more difficult than exiting a Costco and getting the highlighter swipe.

http://www.salon.com/2012/11/23/a_dwi_offer_you_cant_refuse/

Simply put, warrant approvals are often a function of the working relationship between each judge and the LE agency. In some jurisdictions, judges rarely refuse to sign a warrant. In others, LEO's have to "judge shop" to get a signature.

I've seen a judge in open court admonish a defendant for not listening to deputies, because they were looking out for his best interests. :)

[thopkins22]

Warrants are hard to get? We've seen countless examples of judges rarely refusing a warrant. Seems like that signature is no more difficult than exiting a Costco and getting the highlighter swipe.

My ex's father is a judge. When I was visiting them, on several occasions I'd wake up in the middle of the night to the sounds of voices from the kitchen. I'd stumble in to find police officers having warrants signed...I'm assuming this is because he was an easy signature.

It's not difficult to receive a warrant if there is indeed probable cause. We don't need to skip the procedure entirely simply...it's easy enough for an officer to do currently even if you're a believer in snooping through phones.

I will say though, there is some credence to the notion that so few warrants get turned down because police know what and when to ask for one...but surely there's a lot of bogus ones going through.

[Alaskapopo]

My ex's father is a judge. When I was visiting them, on several occasions I'd wake up in the middle of the night to the sounds of voices from the kitchen. I'd stumble in to find police officers having warrants signed...I'm assuming this is because he was an easy signature.

It's not difficult to receive a warrant if there is indeed probable cause. We don't need to skip the procedure entirely simply...it's easy enough for an officer to do currently even if you're a believer in snooping through phones.

I will say though, there is some credence to the notion that so few warrants get turned down because police know what and when to ask for one...but surely there's a lot of bogus ones going through.

In my own experience about the only time you had a potential to get a bogus warrant through was with rural magistrates in villages where they often had no legal training and often took the Troopers or in my case investigators word for it. But on the road system no way. Also I made sure the warrants I applied for in those areas were good because I did not want my case over turned on appeal and be the cause of bad case law.
Pat

[bp7178]

I'm assuming this is because he was an easy signature.



Or maybe its because he was on call...:rolleyes:

[thopkins22]

Or maybe its because he was on call...:rolleyes:

He was not...at least not on one occasion because I asked. :rolleyes:

But it's very possible that he was simply nicer than the judge who was...and not easier in the sense that he was signing questionable warrants(I have a lot of respect for him and don't believe he would knowingly do so.) Like I said in that post, there's a lot to be said for the notion that police simply don't ask unless they've got the appropriate boxes ticked.

[bp7178]

Have you ever obtained a search warrant?

Your original reply didn't include the part "at least not on one occasion because I asked."

I work for a large agency with about 1300-1400 officers. Lots of shit happens, all the time. Pretty busy judicial circuit.

Just how many time were you visiting your ex's parents and you were awoken to voices and stumbled in to see LE getting a warrant signed? Waking a judge up to get a warrant signed is VERY rare. But you seem to suggest you were a frequent party to such, despite just visiting the judges residence.

[jpmuscle]

So are we all pretty much in agreement that unless the search of ones phone is some necessary pursuant to a lawful arrest to begin with in all other situations a warrant should be sought and obtained before proceeding?

Frankly it irritates me to no end that time and time again I hear judicial officials and legal advocates proffer that technology complicates the issue of constitutional privacy. It seems pretty clear to that the default position should always be to error on the side of privacy and not in favor of expanding government/police authority. Irritating indeed.

[thopkins22]

Have you ever obtained a search warrant?

Your original reply didn't include the part "at least not on one occasion because I asked."

I work for a large agency with about 1300-1400 officers. Lots of shit happens, all the time. Pretty busy judicial circuit.

Just how many time were you visiting your ex's parents and you were awoken to voices and stumbled in to see LE getting a warrant signed? Waking a judge up to get a warrant signed is VERY rare. But you seem to suggest you were a frequent party to such, despite just visiting the judges residence.

It didn't contain that phrase, but I decided it was pertinent, so I added it. Sound good?

I woke up to it happening twice(once at thanksgiving, and once between Christmas and New Year's Eve) but got the distinct impression that it was not uncommon in certain circumstances...it can't be that rare, because I highly doubt I was present for the only two times. Perhaps those circumstances are not ordinary in regards to who and why a warrant was issued, but that doesn't change the point I was initially making which was that if a warrant is required a warrant can be obtained relatively easily.

What would you consider rare? What would you consider very rare? We may be in agreement...I'm not implying it was a nightly nor weekly event, my apologies if you read my post that way. But it does happen...I saw it happen.

This is also in a large metropolitan area with lots of police officers for whatever that's worth.

[jpmuscle]

Do any of your guys' departments keep running tallies on the number of warrants rejected/approved over the course of say a year?

[Alaskapopo]

Do any of your guys' departments keep running tallies on the number of warrants rejected/approved over the course of say a year?

I know how many I have been rejected on in 14 years. 2. But then again I knew when I have enough PC and when I don't. The two that were rejected I knew would be but I was ordered to write them by a superior in each case.
Pat

[jpmuscle]

I know how many I have been rejected on in 14 years. 2. But then again I knew when I have enough PC and when I don't. The two that were rejected I knew would be but I was ordered to write them by a superior in each case.
Pat

So that should be indicative of a couple things. Either the judges are rubber stamping them in all but the most obvious cases, LEOs are either doing precise and diligent work and their warrant submissions are gtg to begin with, or things are being articulated in such a fashion that their is very little room or reason for a judge to say no.


It's reasonable to think that such a high validation rate is cause for concern. And even if its not regarding the topic at hand I see no reason why not to obtain a warrant prior to accessing someones cellphone, even if it is nothing more than an additional administration and/or procedural hurdle.

[Alaskapopo]

So that should be indicative of a couple things. Either the judges are rubber stamping them in all but the most obvious cases, LEOs are either doing precise and diligent work and their warrant submissions are gtg to begin with, or things are being articulated in such a fashion that their is very little room or reason for a judge to say no.


It's reasonable to think that such a high validation rate is cause for concern. And even if its not regarding the topic at hand I see no reason why not to obtain a warrant prior to accessing someones cellphone, even if it is nothing more than an additional administration and/or procedural hurdle.
The reality is search warrants take time to write and no officer wants to waste his time writing a warrant he knows does not have much of a chance. We are not out fishing for dirt on good people. We are contacting criminals who are doing bad things.
Pat

[bp7178]

I doubt departments would keep a tally of that. I would suspect that the relevant prosecuting attorneys office may.

Warrants are prepared, signed off by the attorneys office, then presented to a judge. Typically, the circuit attorney (used interchangeably with prosecuting attorney) files copies.

I don't know what division or circuit your guy was a judge over. If it was one that possibly saw a lot of traffic cases, it makes sense he could be sought out if a warrant needed to be obtained for DWI investigations given the late night/holiday timeline.

Certain judges seem to hear, or be more familiar with, certain types of cases and the nuisances of the law surrounding them. Obviously this is only one possibility.


So are we all pretty much in agreement that unless the search of ones phone is some necessary pursuant to a lawful arrest to begin with in all other situations a warrant should be sought and obtained before proceeding?

This makes no sense the way its written.

If there is an articulable need in regards to the preservation of evidence contained on the device, I can see an exception under what could be considered an exigent circumstance. Even then, I would obtain a warrant in good faith.

Not that the argument really applies, as the article wants to address search incident to arrest and its coverage of communication devices.

I doubt a phone number was obtained from the defendants device and police stormed into his home w/o further work. There's a couple of steps missing from the article.

A case I remember working was a home invasion in which the suspect dropped his phone at the scene. The victim found the phone, and looked through it. She identified a male subject depicted in the photographs contained on the phone as her assailant. The phone in question was a smartphone.

Given the violent nature of the crime and the possibility of remotely erasing the data on the phone, I used the phone to email the picture in question to my department e-mail account. The suspect and his accomplices were actively looking for the phone as it received numerous missed calls and text messages.

From the photograph and the name associated with the e-mail account I was able to identify the suspect through prior booking information/photographs and he was entered as wanted.

We were eventually able to hand the phone over to our Cyber Crimes division which has special enclosures to prevent any type of transmission or reception.

A search warrant was obtained both for the data on the phone and the carrier records. Cyber Crimes did a full data extract on the phone. The amount of data was shocking. The capability of the forensic software to recover data is amazing. NOTHING you do in a digital format is ever really gone.

The first judge we brought the warrant to didn't sign it because he didn't think a state level search warrant could be obtained for carrier records which are housed on a server in another state. This is in direct contradiction to federal law concerning same. The exact same warrant/affidavit was presented to a judge which frequently handled such cases and it was signed.

The suspect was located hiding behind a couch at his grandmother's residence when an arrest attempt was made and he was taken into custody.

The case went to trail, and the suspect ultimately beat the case and was acquitted. On exit, the jurors stated they didn't believe the victim, as the defense and stated the suspect was at the residence to collect a debt, but it was the victim who attacked him. There was a lot going between the suspect and his brother, who was dating the victim's daughter's niece. You needed a flow chart to keep that shit straight.

I don't take plumbing advice from my gardener. The justice system is so full of very subtle nuisances that you can't possibly form a credible opinion without education, training and experience in the field. But such is the GD forum. Everyone who watches Law and Order thinks they know what's doing.

Either way, put a passcode on your phone. If anyone asked me if they could search anything of mine, the answer would be no.

[El Vaquero]

So that should be indicative of a couple things. Either the judges are rubber stamping them in all but the most obvious cases, LEOs are either doing precise and diligent work and their warrant submissions are gtg to begin with, or things are being articulated in such a fashion that their is very little room or reason for a judge to say no.

It's reasonable to think that such a high validation rate is cause for concern. And even if its not regarding the topic at hand I see no reason why not to obtain a warrant prior to accessing someones cellphone, even if it is nothing more than an additional administration and/or procedural hurdle.

So by this rationale if I talk to 100 arrested persons who admit to using their phones for drug transactions and I get warrant signed off in all of those instances, that high validation rate is cause for concern? C'mon man.

And if a judge doesn't want to sign a warrant he just plain won't sign it. This is REGARDLESS of articulation or lack of probable cause or leaving very little room to say no. It might just be because you brought a black pen instead of a blue pen. I'm being slightly sarcastic but you get the point.

I agree LE should have a reason/warrant before just searching a cell phone without cause. Cell phones today are like computers and laptops. Case law has generally stated if you want to search a laptop or computer you need a search warrant. Should be the same thing for a cell phone as it nowadays has the same computing power.

What cracks me up is how some say there's generally a valid reason to be able to get a search warrant but then turn around and say a high validation rate is a concern.

Innocent people get tried by judge/jury and get sent to prison. It happens. Is it rare? YES. Are there poor judges that might sign off on anything you put in front of them? YES. Is it rare? YES. The system is not perfect, but it is not a reflection of how you make it out to be.