Beta
×

Welcome to the Slashdot Beta site -- learn more here. Use the link in the footer or click here to return to the Classic version of Slashdot.

Thank you!

Before you choose to head back to the Classic look of the site, we'd appreciate it if you share your thoughts on the Beta; your feedback is what drives our ongoing development.

Beta is different and we value you taking the time to try it out. Please take a look at the changes we've made in Beta and  learn more about it. Thanks for reading, and for making the site better!

Cell Phone Searches Require Warrant

kdawson posted more than 4 years ago | from the don't-search-me-bro dept.

Cellphones 161

schleprock63 writes "The Ohio state supreme court has decided that a cell phone found on a suspect cannot be searched without a warrant. The majority based this decision on a federal case that deemed a cell phone not to be a 'closed container,' and therefore not searchable without a warrant. The argument of the majority contended that a cell phone does not contain physical objects and therefore is not a container. One dissenting judge argued that a cell phone is a container that simply contains data. He argued that the other judges were 'needlessly theorizing' about the contents of a cell phone. He compared the data contained within an address book that would be searchable." The article notes that this was apparently the first time the question has come up before any state supreme court.

Sorry! There are no comments related to the filter you selected.

Not not? (3)

Hatta (162192) | more than 4 years ago | (#30448588)

Either submitter has their double negatives mixed up, or I'm really confused here:

The majority based this decision on a federal case that deemed a cell phone not to be a 'closed container,' and terefore not searchable without a warrant

Does that mean that a "closed container" is searchable without a warrant? How can that be deemed reasonable?

Re:Not not? (2, Insightful)

Anonymous Coward | more than 4 years ago | (#30448642)

Seconded. We nead clarification, especially since the majority can't even RTFA.

Re:Not not? (5, Informative)

clone53421 (1310749) | more than 4 years ago | (#30448870)

From TFA (all emphasis mine):

A state appeals court upheld the trial ruling in a 2-1 decision. The dissenting judge based his opposition on a different federal court case, which found that a cell phone is not a “container” as the term had been used previously.

Writing for the majority in Tuesday’s ruling, [state] Supreme Court Justice Judith Ann Lanzinger ... said the majority didn’t agree with the state’s argument that a cell phone was akin to a closed container.

The state won the case in the appeals court – but the judge who sided with Smith in that court argued that the cell phone was not a “container”.

Smith won the case in the state Supreme Court – and once again, the judges siding with Smith accepted the idea that the cell phone was not a “container”.

So, what’s the significance of a “container”? We’ll dig further.

http://www.sconet.state.oh.us/PIO/oralArguments/09/0915/0915.asp#081781 [state.oh.us]

ISSUE: When a criminal suspect has been taken into custody and his cell phone has been lawfully seized by police incident to his arrest, do police officers violate the defendant’s Fourth Amendment right against unreasonable searches and seizures by conducting a warrantless search of the electronic files stored in the cell phone?

In this case, [attorneys for Smith] point out, the search of Smith’s phone was conducted hours after he had been taken into custody and his phone had been in the secure possession and control of the police. Under those circumstances, they assert, the phone search was not “incident to” Smith’s arrest and therefore required a warrant. Rather than functioning as a “container” like a box or bag, they assert that current-generation cell phones are much more analogous to personal computers, in which their owners store a wide range of electronic information of a personal nature for which they have a strong expectation of privacy, and which courts have held may not be searched by police without first obtaining a warrant.

Attorneys for the state argue that the trial court and court of appeals properly followed earlier court decisions holding that a closed “container” that was on the person or in the immediate control of an arrested person at the time the arrest is made is subject to search without a warrant. They note that state and federal courts have held that the contents of a woman’s purse or a man’s wallet are subject to a warrantless search incident to an arrest, and argue that the contents of a cell phone should enjoy no greater protection or expectation of privacy than those items.

Re:Not not? (2, Insightful)

Anonymous Coward | more than 4 years ago | (#30449006)

I'd be perfectly happy if nothing was ever searchable for any reason without a warrant. If there is a reasonable suspicion that someone has committed a crime, then getting a warrant should be no problem. If there is no such reasonable suspicion, then there should be no search.

Arrange that, then tell our legislators that "if your law requires a police state to enforce, it's a bad law." Then we can end this miserable failure of a War on (some) Drugs and get our 4th Amendment back.

Re:Not not? (3, Insightful)

surmak (1238244) | more than 4 years ago | (#30449212)

Attorneys for the state argue that the trial court and court of appeals properly followed earlier court decisions holding that a closed “container” that was on the person or in the immediate control of an arrested person at the time the arrest is made is subject to search without a warrant. They note that state and federal courts have held that the contents of a woman’s purse or a man’s wallet are subject to a warrantless search incident to an arrest, and argue that the contents of a cell phone should enjoy no greater protection or expectation of privacy than those items.

I guess that a reasonable standard would be to perform a physical search of the phone to insure that there is no object hidden in the phone (maybe some pills were placed behind the battery, or the like, or to insure that the device is actually a functional phone, and not a bomb contained in a phone case). An electronic search of the data is a completely different beast, and there is no reason for the arresting officer to access the data without a warrent.

On the other hand, I would hope that the same rules apply to wallets. Over the last couple of years, I have been in the habit of carrying a USB flash stick in my wallet, and if I ever got arrested (God forbid), it would be reasonable for them to search the wallet, but not to plug the flash device into a computer without a wallet.

Re:Not not? (5, Interesting)

KC7JHO (919247) | more than 4 years ago | (#30449860)

Ok, first off, I am a Police Officer in the state of Oklahoma (I know each state is different...) so with that being said, the search of a closed container during an arrest is for safety/inventory purposes.

I have never even thought I had a right to examine the contents of the phone past the initial screen (no pushing buttons, etc) OR a flash drive with out a warrant. Even when I server a search warrant on a house to retrieve and search electronic storage devices I must always specify that I will be searching the contents of every object found including any phones, disk, computers, cameras, etc. If, during my warranted search I find evidence of the suspect using an online e-mail service (I.E. g-mail) I must again obtain a warrant for this service as well. This is to protect the peoples right to freedom of speach. If I can not convince the judge that the suspect was using the service to conduct illegal activity pertaining to my previous warrant then the Judge will not grant my warrant. In my opinion this is perfectly logical!

If I am arresting some one for suspicion of dealing narcotics, I can justify a warrant on the phone to look for contacts, messages, etc. If I am arresting them for DUI, what reason could I have for needing to search the contents of the phone? If I am sworn to protect the public, I am just as sworn to protect the civil rights of the public! If I go to a neighboring city/state I would expect the same protection.

Re:Not not? (1)

Oxford_Comma_Lover (1679530) | more than 4 years ago | (#30450046)

Ok, first off, I am a Police Officer in the state of Oklahoma (I know each state is different...) so with that being said, the search of a closed container during an arrest is for safety/inventory purposes.

I have never even thought I had a right to examine the contents of the phone past the initial screen (no pushing buttons, etc) OR a flash drive with out a warrant. Even when I server a search warrant on a house to retrieve and search electronic storage devices I must always specify that I will be searching the contents of every object found including any phones, disk, computers, cameras, etc. If, during my warranted search I find evidence of the suspect using an online e-mail service (I.E. g-mail) I must again obtain a warrant for this service as well. This is to protect the peoples right to freedom of speach. If I can not convince the judge that the suspect was using the service to conduct illegal activity pertaining to my previous warrant then the Judge will not grant my warrant. In my opinion this is perfectly logical!

If I am arresting some one for suspicion of dealing narcotics, I can justify a warrant on the phone to look for contacts, messages, etc. If I am arresting them for DUI, what reason could I have for needing to search the contents of the phone? If I am sworn to protect the public, I am just as sworn to protect the civil rights of the public! If I go to a neighboring city/state I would expect the same protection.

IANAL, but I believe the requirement to get the warrant for the online email service actually arises out of the same Fourth Amendment right to protection from unreasonable search and seizure that requires one to get a warrant to search a house. In Zurcher v. Stanford Daily the Supreme Court rejected the idea that there was in independent First Amendment bar to the scope of a search, although it did suggest that courts should be more rigorous about Fourth Amendment analysis in cases that implicated the First Amendment.

Re:Not not? (5, Insightful)

Anonymous Coward | more than 4 years ago | (#30450236)

Thank you, you're the kind of police officer we need on the streets.

Re:Not not? (1)

endymion.nz (1093595) | more than 4 years ago | (#30448908)

Closed container = the thing you keep your weed in. Cops are allowed to look in it without a search warrant.

Re:Not not? (1)

nospam007 (722110) | more than 4 years ago | (#30449790)

Seconded. We nead clarification, especially since the majority can't even RTFA.

We can, we just won't.

Re:Not not? (4, Insightful)

interkin3tic (1469267) | more than 4 years ago | (#30448656)

I was confused about that too. It does appear from TFA that a closed container is searchable without a warrant.

So... anything besides a closed container requires a warrant or what? I'm assuming an "open container" would not require a warrant. Then again, I usually find logic has no place in the legal system.

I'm also confused about the case. Was the searching the cell phone superfluous to the case? TFA states the defendant answered the phone when a coke user acting as informant called and then police searched it. Is it somehow against the law to answer the phone? Like maybe he was under probation and barred from talking to his old clients or something?

Re:Not not? (1)

Monkeedude1212 (1560403) | more than 4 years ago | (#30448726)

I was confused about that too. It does appear from TFA that a closed container is searchable without a warrant.

Really? That seems a little backwards, I mean obviously an open container wouldn't require a warrant to search because you don't really have to DO anything to search it, just peer in its direction.

But then basically that makes it sound like a container, regardless of its condition, is searchable without a warrant, so it makes no difference whether judges would argue if a phone is a container or not.

Unless of course, by logic, an Open container must have a warrant to search it, which explains why judges are wondering if a phone is a container and whether its considered closed.

Therefor, by logic, it is absolutely retarded that a closed container does not require a warrant but an open container does.

Re:Not not? (1)

wealthychef (584778) | more than 4 years ago | (#30449202)

There are other objects in the universe besides containers, whether open or closed. Obviously an open container is searchable, generally by trivial inspection. A closed container can be searched if it's incidental to an arrest (as opposed to arbitrarily at the officer's whim), but apparently a cell phone is like a laptop, which cannot be searched even if it appears to the officer related to the arrest.

The moral of the story: store your weed in your laptop or cell phone.

Re:Not not? (1)

shentino (1139071) | more than 4 years ago | (#30448802)

I'd think that answering a call from a client would constitute probable cause anyway.

Re:Not not? (1)

clone53421 (1310749) | more than 4 years ago | (#30448940)

a closed container is searchable without a warrant

Correct.

[searching] an “open container” would not require a warrant

Also correct.

Re:Not not? (1)

Anachragnome (1008495) | more than 4 years ago | (#30450198)

"TFA states the defendant answered the phone when a coke user acting as informant called and then police searched it."

THAT sounds like the cops knew they could not search the data on the phone unless they had some valid reason attributable to the case.

So what do they do? They instruct an informant(someone working with them...) to call the phone, someone they knew was a coke user, and thus CREATED a connection between the phone and they case they were pursuing.

Sounds like they knew exactly what the limitations of the law were and simply devised a way AROUND them. Stinks like entrapment to me.

Re:Not not? (1)

Pentium100 (1240090) | more than 4 years ago | (#30448668)

IANAL, but maybe if they found some sort of a closed box on the suspect, the police could open it to see if there is, for example, a gun inside.

Re:Not not? (2, Interesting)

click2005 (921437) | more than 4 years ago | (#30448728)

Wouldn't that allow them to open almost anything in these times when 100ml of liquid or a nail file could be and sometimes are considered weapons?

Re:Not not? (4, Insightful)

causality (777677) | more than 4 years ago | (#30449106)

Wouldn't that allow them to open almost anything in these times when 100ml of liquid or a nail file could be and sometimes are considered weapons?

I think that's the idea. We already have so many laws on the books that each citizen routinely breaks at least some of them some of the time. To complete this, now anything and everything is a "weapon" anytime an official needs an excuse to search you. The reason why you have basically unenforcable laws like this, is so that you can enforce them anytime you want against anyone. I'm sure it's quite "handy" for political opponents or anyone who is an outspoken critic or otherwise a nuisance to whoever is in power or is otherwise well-connected.

We have this situation because the average American is a hell of a lot more concerned about football, the Top 40 charts, and American Idol than they are about their own freedom and well-being. That saying about how our system causes us to get the government we deserve probably has some truth to it.

Re:Not not? (1)

StikyPad (445176) | more than 4 years ago | (#30449650)

That saying about how our system causes us to get the government we deserve probably has some truth to it.

Yes, people always get the government they deserve, because governments cannot exist without consent of the governed. Tyranny would seem to be an obvious exception, but it's really not. If the people don't overthrow tyranny, then they are implicitly accepting it. A government may put down insurrections, even successfully, but if that fails to incite *even more* insurrection, then again, the people are complicit in their own oppression.

Re:Not not? (1)

Shakrai (717556) | more than 4 years ago | (#30449882)

because governments cannot exist without consent of the governed.

They can if the governed aren't armed.

Re:Not not? (1)

nsayer (86181) | more than 4 years ago | (#30450278)

We already have so many laws on the books that each citizen routinely breaks at least some of them some of the time.

Laws which are impossible to avoid breaking are effectively a "writ of assistance," and are unconstitutional.

In fact, until it was repealed, the 55 mi/hr speed limit qualified - most of the time anyone driving on a freeway could either be cited for driving faster than 55 mi/hr or obstructing traffic.

Re:Not not? (1)

joelgrimes (130046) | more than 4 years ago | (#30449468)

I think you're missing the operative words: incident to arrest.

They can't just stop people going about their business and demand to see the contents of their backpacks in the hopes of finding something incriminating.

Re:Not not? (2, Insightful)

HTH NE1 (675604) | more than 4 years ago | (#30448960)

IANAL, but maybe if they found some sort of a closed box on the suspect, the police could open it to see if there is, for example, a gun inside.

I believe that's for the safety of the officer. Cell phone data though is not an imminent threat to anyone. At most they could disassemble the phone physically such as removing its battery, but that should not extend to the data on the phone.

This is often why an officer will walk you around your car so that the whole car can be seen as being within your reach giving them authority to search for weapons.

It sounds like the officers in this case were seeking confirmation of the phone call of which they monitored the other end with their informant, but forgot to or could not get a warrant for the phone or the records from the phone company beforehand. Or seeking to ID a suspect by making a call to the phone and have the phone confirm the call and thus the ID, seeking an exigent circumstances exception before the suspect ditches the phone or clears the memory.

I wonder if it matters whether or not it is a flip-phone or had a locked control panel/screen.

Re:Not not? (5, Informative)

IndustrialComplex (975015) | more than 4 years ago | (#30448698)

Does that mean that a "closed container" is searchable without a warrant? How can that be deemed reasonable?

If I had a 4 liter tin cookie can when I was arrested, it could potentially contain knives, guns, maybe even a bomb. It is reasonable for a police officer to be able to search such a container when they take you into custody. It could be dangerous.

That is what they mean by a closed container. A cell phone cannot contain a physical dangerous object within its data.

However, if the police suspected that the phone was just a shell and contained bullets instead of a battery, they might have authority to search it for bullets, but that doesn't involve turning it on and going through the data.

Re:Not not? (1)

Monkeedude1212 (1560403) | more than 4 years ago | (#30448792)

Ah - see now THAT makes more sense. Thank you for clarifying - I feel like an idiot for posting rants up above.

Re:Not not? (0)

Anonymous Coward | more than 4 years ago | (#30449114)

I think the editors should go ahead and append this comment to the end of the summary...nicely done.

Re:Not not? (0)

Anonymous Coward | more than 4 years ago | (#30449198)

> If I had a 4 liter tin cookie can when I was arrested, it could potentially contain knives, guns, maybe even a bomb. It is reasonable for a police officer to be able to search such a container when they take you into custody. It could be dangerous.

Yeah, and you could also have a hand grenade up some orifice where the sun don't shine. You're going to suggest they search there without a warrant as well, right?

Re:Not not? (1)

lyml (1200795) | more than 4 years ago | (#30449364)

If they suspect you of having an object in there can't they already do that?

Re:Not not? (1)

KC7JHO (919247) | more than 4 years ago | (#30450036)

Yes, and is real nice to NOT be a female officer when a 400# female makes such a claim! "Sorry mam but you are going to have to book this one in, she wants a full body cavity search and there seems to be a LOT of body and cavities, so have fun!"

Re:Not not? (1)

Shakrai (717556) | more than 4 years ago | (#30450098)

Yes, and is real nice to NOT be a female officer when a 400# female makes such a claim! "Sorry mam but you are going to have to book this one in, she wants a full body cavity search and there seems to be a LOT of body and cavities, so have fun!"

You poor bastards really don't get paid enough money for doing the job that you do.......

Re:Not not? (1)

lazycam (1007621) | more than 4 years ago | (#30449294)

Looks like I am going to start carrying my cell in a zip lock bag. Wonder if that works?

Re:Not not? (1)

IndustrialComplex (975015) | more than 4 years ago | (#30449474)

Looks like I am going to start carrying my cell in a zip lock bag. Wonder if that works?

The contents of a clear ziplock bag would be in plain view, and no reasonable person would have an expectation of privacy regarding the observation of such materials. An opaque or translucent ziplock bag would probably instantly cause the officer to open and inspect the bag.

I can kind of see where you are going with this one. Is this your line of reasoning? Since the cell phone was in plain view, and if there was no cause for suspicion to believe that the phone was anything other than a phone and not a shell for contraband, then opening the baggie to further inspect the phone was not necessary. Is that correct?

The arguements could be made:

Since it was plain that the phone was nothing more than a phone, the bag did not need to be opened to further inspect the phone.

The counterarguement could be made:

The bag was clear and therefore provided clear line of sight to the objects contained within, the implication is that the phone was not an item that the bearer had any intention of keeping private.

The reality:

Cop: What baggie?

Re:Not not? (2, Interesting)

KC7JHO (919247) | more than 4 years ago | (#30450128)

Hmm, My first thought would be... why in the world is this phone in the bag. This requires inspection. I would most definitely check the phone over carefully, thinking that the suspect must be using the bag to keep something on the phone ir in the phone (not data) from smelling/leaking out in a pocket. Otherwise if found in a pocket with out a bag, ya everyone caries a phone, drop in in the bag with everything else and give it back to them when they are released.

Re:Not not? (1)

Drasham (1626825) | more than 4 years ago | (#30448756)

From the article:

The trial court admitted the call records and phone numbers, citing a 2007 federal court decision that found that a cell phone is similar to a closed container found on a suspect and therefore subject to search without a warrant. Smith was convicted of all charges and sentenced to 12 years in prison.

A state appeals court upheld the trial ruling in a 2-1 decision. The dissenting judge based his opposition on a different federal court case, which found that a cell phone is not a ''container'' as the term had been used previously.

It sounds to me as if the article itself is worded ackwardly.
later in the article Supreme Court Justice Judith Ann Lanzinger is quoted saying:

''We do not agree with this comparison, which ignores the unique nature of cell phones,'' Lanzinger wrote. ''Objects falling under the banner of 'closed container' have traditionally been physical objects capable of holding other physical objects. Indeed, the United States Supreme Court has stated that in this situation, 'container' means 'any object capable of holding another object.'

''Even the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container,''

A simple solution to the everyday person should be to use the pin feature available in most, if not all, modern cell phones to prevent _casual_ inspection by anyone who picked up your device.

Re:Not not? (1)

clone53421 (1310749) | more than 4 years ago | (#30449026)

That’s three different courts... the trial court, the appeals court, and the state Supreme Court. They could, perhaps, have been a little clearer on this significant fact, but once you understand that they were three separate courts it makes perfect sense.

The trial court admitted the evidence and convicted Smith.

The appeals court upheld the trial ruling on a 2-1 decision in favor of the state, with the lone dissenting justice arguing that a cell phone is not a “container” and thus not subject to search.

The state Supreme Court overturned the appeals court’s ruling by a 5-4 decision in favor of Smith, on the basis that (as was claimed by the dissenting justice in the trial court) the cell phone was not a “container”.

Re:Not not? (0)

Anonymous Coward | more than 4 years ago | (#30449362)

No, they goofed in the article logic. A closed container requires a warrant, as data is not in "plain sight" by simply looking at the phone.

Re:Not not? (0)

Anonymous Coward | more than 4 years ago | (#30449566)

Either submitter has their double negatives mixed up, or I'm really confused here:

The majority based this decision on a federal case that deemed a cell phone not to be a 'closed container,' and terefore not searchable without a warrant

Does that mean that a "closed container" is searchable without a warrant? How can that be deemed reasonable?

Thank god I'm not the only one, thought the radiation for the computer monitor had finally gotten to me after i read that line 5 times trying to figure out why it didn't make sense.

Re:Not not? (1)

fluffy99 (870997) | more than 4 years ago | (#30450214)

Does that mean that a "closed container" is searchable without a warrant? How can that be deemed reasonable?

Yes. In Ohio, a closed container found on the arrestee or within reach can be searched without a warrant. The argument being made is that a cell phone is more like a computer which would require a warrant to search, and not a box containing physical items.

What if... (1)

vvaduva (859950) | more than 4 years ago | (#30448616)

I can't read TFA since I don't have a NYT account, but what if the suspect had a laptop or netbook on his person; wouldn't the police need a separate search warrant to search that specific machine? A cell phone is not different, is it? It sounds like a good decision to me.

Re:What if... (4, Informative)

XxtraLarGe (551297) | more than 4 years ago | (#30448660)

username: slashdotnyt
password: slashdotnyt

Re:What if... (2, Interesting)

Shadow Wrought (586631) | more than 4 years ago | (#30448722)

but what if the suspect had a laptop or netbook on his person; wouldn't the police need a separate search warrant to search that specific machine? A cell phone is not different, is it?

I think the Courts have been trying to differentiate far too much. If it's OK to search your physical papers, address books, and mail you might have, why should a computer, cell phone, or netbook be any different? It's just data in 1's and 0's instead of ink and paper.

Re:What if... (2, Interesting)

Anonymous Coward | more than 4 years ago | (#30448916)

There aren't many cases where I think requiring the police to get a warrant is too large an imposition. If they have reason to believe there's information of use on that cell phone, they can go get a warrant and then search the phone.

Re:What if... (1)

osu-neko (2604) | more than 4 years ago | (#30449436)

I think the Courts have been trying to differentiate far too much. If it's OK to search your physical papers, address books, and mail you might have, why should a computer, cell phone, or netbook be any different? It's just data in 1's and 0's instead of ink and paper.

These days, devices like a cell phone often don't even technically contain the data, they're just the device for accessing the data stored "in the cloud" (i.e. in some datacenter somewhere). If your view is to be taken seriously, one of two things must obtain: (1) you must insist that officers be able to tell the difference, a technical detail that even the owner might not know, or (2) you believe a police officer, upon arresting you, can not only look at everything you have in your possession, but use such items to access any accounts or other information you might be able to access, including viewing data stored on computers in other countries, assuming you were carrying a device that allowed you to access it (which, in today's internet-connected age, is quite common and includes pretty much everything, e.g. your back account records can be accessed from your phone).

(1) requires near omniscience on the part of officers, (2) is essentially throwing away the need for warrants to access anything.

Re:What if... (1)

osu-neko (2604) | more than 4 years ago | (#30449456)

Erg, that's "bank account records". BTW, I think this is the only forum I use that still doesn't have an edit feature. Time for /. to wake up and smell the 21st century?

Re:What if... (1)

Thinboy00 (1190815) | more than 4 years ago | (#30449564)

Because you might well be carting around several Libraries of Congress worth of data on the computer, but not in ink and paper.

Re:What if... (1)

fulldecent (598482) | more than 4 years ago | (#30449626)

>> I think the Courts have been trying to differentiate far too much. If it's OK to search your physical papers, address books, and mail you might have, why should a computer, cell phone, or netbook be any different? It's just data in 1's and 0's instead of ink and paper.

wrong.

please see above.

Re:What if... (1)

KC7JHO (919247) | more than 4 years ago | (#30450252)

Partially due to the fact that the evidence stored electronically is usually easily altered. Not only does the officer have to get a warrant to do the search but the officer must conduct the search in a forensically safe manner so as to maintain the integrity of the data as much as possible.

except... (0)

Anonymous Coward | more than 4 years ago | (#30448620)

Isn't that with certain exceptions...

If you're crossing a border.
If you're suspected of being a terrorist.

and maybe soon

If you're suspected of copyright infringement.

Persons, papers and effects... (3, Insightful)

Jah-Wren Ryel (80510) | more than 4 years ago | (#30448648)

He compared the data contained within an address book that would be searchable.

How is an address book not "papers" as in the 4th ammendment's person, papers and effects?

Re:Persons, papers and effects... (1)

wizardforce (1005805) | more than 4 years ago | (#30448732)

How is an address book not "papers" as in the 4th ammendment's person, papers and effects?

One more example of how the word "reasonable" was certain to be misinterpreted by the courts in the state's favor.

Re:Persons, papers and effects... (1)

TheMeuge (645043) | more than 4 years ago | (#30448738)

That's a very good point. I'd like to hear an attorney's view. Certainly there are enough on Slashdot.

But that's not the first time I see this. Hell, even Law and Order has episodes where they go through the suspect's address book. I guess putting everything under encryption would work, as you could probably plead the 5th and not share the password.

Re:Persons, papers and effects... (1)

osu-neko (2604) | more than 4 years ago | (#30449558)

But that's not the first time I see this. Hell, even Law and Order has episodes where they go through the suspect's address book. I guess putting everything under encryption would work, as you could probably plead the 5th and not share the password.

The 5th amendment prevents the state from compelling you to testify against yourself. Specifically, "...nor shall be compelled in any criminal case to be a witness against himself..." It does not authorize you to hide evidence. You must still turn over evidence, even incriminating evidence, if ordered by a court; you just can't be called upon by the court to explain it.

Re:Persons, papers and effects... (5, Informative)

RingDev (879105) | more than 4 years ago | (#30448804)

If you have an address book, or day planner, you could use it to hold a gun or a knife. So an arresting officer has the right to open it and ensure that there is nothing that could jeopardize their safety in it. They should not be reading the papers, BUT, if you have a 8x10" glossy photo of you putting a round into someone...

The argument here, as I understand it, is that the majority felt that there is no need to peruse the DATA on the phone to ensure that it will not jeopardize the officer's safety. You can not store a gun or a knife in binary format. So while the cops could crack the case and ensure that there are no hidden contents in side the case, they can not flip through your address book, recent calls, or text messages.

-Rick

Re:Persons, papers and effects... (2, Informative)

kingbilly (993754) | more than 4 years ago | (#30448888)

I'd mod this +1 Insightful if I had the points.

Re:Persons, papers and effects... (1)

HTH NE1 (675604) | more than 4 years ago | (#30449090)

Some airport screeners don't even allow pictures of guns. Not even pictures of fictional guns held by giant robots on T-shirts, even if was an Autobot and not a Decepticon.

Re:Persons, papers and effects... (0)

Anonymous Coward | more than 4 years ago | (#30449182)

A picture of a gun (a real photo, something printed on a post card, the cover of a the latest issue of Guns Weekly, or screened onto a t-shirt, etc.) is protected by free speech. If you, or anyone you know, has been stopped by an airport screener and not allowed to let such an item through security, it would be grounds for a serious civil lawsuit. Now, if it was some weird electronic gizmo displaying a gun on an lcd, with lots of wires hanging out and blinking lights and a countdown timer going off (and who among us hasn't created such a machine at least once?)... Yes, they could stop you.

Re:Persons, papers and effects... (3, Informative)

HTH NE1 (675604) | more than 4 years ago | (#30449532)

It was at Heathrow Terminal 5 [theedgeofmadness.com] . That's the UK. The person affected had to change into a different shirt and pack the T-shirt, and was threatened with arrest if he were to put it back on, but was allowed to fly.

A Google search will find many more articles about the incident.

Re:Persons, papers and effects... (2, Insightful)

Shakrai (717556) | more than 4 years ago | (#30450138)

Not much surprise there. They surrendered any pretense of caring about civil liberties a long time ago.

Re:Persons, papers and effects... (1)

Hurricane78 (562437) | more than 4 years ago | (#30449496)

Wait until they break out the “malware is a WMD” mind-twist. ^^

Re:Persons, papers and effects... (2, Insightful)

Trepidity (597) | more than 4 years ago | (#30448824)

It is, but the 4th amendment only prohibits "unreasonable" searches. In the general case, a "reasonable" search is one authorized by a warrant, but the courts have held that some kinds of warrantless searches are presumptively reasonable. Search of an arrestee incident to arrest is one of them.

Re:Persons, papers and effects... (1)

DragonWriter (970822) | more than 4 years ago | (#30448830)

How is an address book not "papers" as in the 4th ammendment's person, papers and effects?

It is. The basis on which they could be reviewed in a search incident to arrest is not that they are an exception to the reasonableness requirement (which admits to no exception), but an exception to the implied warrant requirement. You'll note that the language of the amendment doesn't ever explicitly requires warrants for searches, it requires reasonableness and it limits the conditions in which warrants can be issued.

Re:Persons, papers and effects... (3, Insightful)

IndustrialComplex (975015) | more than 4 years ago | (#30448858)

How is an address book not "papers" as in the 4th ammendment's person, papers and effects?

That's what happens when people forget that the Constitution is a limitation on the government, and mistake it for a permission slip for the people.

But mostly it's a byproduct of the concept that Reasonable means "Everything as long as it didn't involve a nightstick up your rear". We just regained that last clause recently, but only just.

Re:Persons, papers and effects... (3, Informative)

RingDev (879105) | more than 4 years ago | (#30448984)

This isn't some gross abuse of the bill of rights. This is for items just like this: http://www.dillonprecision.com/content/p/9/pid/23863/catid/14/Dillon__039_s___039_Plan_B__039__Day_Planner [dillonprecision.com]

A Closed Container, when you are being arrested, could contain a weapon. A day planner is large enough that it could easily contain a weapon. A cell phone could be used to smuggle a weapon, ammo, or a bomb, BUT, as the majority has rightfully ruled, those threats are not contained in the DATA on the phone. So if a police were to arrest you, and feared that you may have a shiv stashed in your phone, they are completely with in their rights to pop the case on your cell phone and ensure that there are no weapons inside of it. This ruling reiterates that they are NOT with in their rights to turn on your phone, flip through your address book, recent calls, and text message to ensure that there are no weapons in it.

-Rick

Re:Persons, papers and effects... (2, Insightful)

DaveV1.0 (203135) | more than 4 years ago | (#30448932)

FTA:

The trial court admitted the call records and phone numbers, citing a 2007 federal court decision that found that a cell phone is similar to a closed container found on a suspect and therefore subject to search without a warrant. ...
''We do not agree with this comparison, which ignores the unique nature of cell phones,'' Lanzinger wrote. ''Objects falling under the banner of 'closed container' have traditionally been physical objects capable of holding other physical objects.

As someone else said, an address book would be considered a "container" as it can contain other items between the pages. They can search the address book for other items.

Interestingly, I am not sure the data contained in the address book would be admissible under the theory put forth. This could have interesting side effects.

Re:Persons, papers and effects... (1)

Thinboy00 (1190815) | more than 4 years ago | (#30449612)

I think if you give them permission to search your car for e.g. guns and they find e.g. pot they can still arrest you and charge you and convict you because the search was, at the time, reasonable, even though they found stuff they weren't supposed to be looking for. IANAL.

Re:Persons, papers and effects... (1)

Shakrai (717556) | more than 4 years ago | (#30450162)

If you gave them permission to search your car for anything you deserve to go to jail for stupidity.

Re:Persons, papers and effects... (1)

phantomcircuit (938963) | more than 4 years ago | (#30449046)

They are allowed to search your persons, papers, and effects.

This ruling makes absolutely no sense. Under this ruling a physical address book is open to search upon arrest, but the virtual address book in a cell phone is not.

That they ruled the cell phone to not be a closed container is actually what limits the police. Kind of crazy, right?

Tangibility is Irrelevant (4, Funny)

Prysorra (1040518) | more than 4 years ago | (#30448716)

"He compared the data contained within an address book that would be searchable."

In the future, so too would be human thoughts. Human heads are simply containers for memories stored in synaptic format.

I'm not sure how to feel. (1)

jtownatpunk.net (245670) | more than 4 years ago | (#30448746)

The privacy advocate in me is thrilled. The critical thinking side of me feels the logic used to arrive at that ruling is asinine.

Re:I'm not sure how to feel. (1)

maxume (22995) | more than 4 years ago | (#30448894)

It isn't that tortured, previous cases have established that cops can check the contents of containers, this ruling establishes that cell phones do not qualify for that exception.

Re:I'm not sure how to feel. (1)

clone53421 (1310749) | more than 4 years ago | (#30449058)

Welcome to the US legal system.

Re:I'm not sure how to feel. (2, Insightful)

DragonWriter (970822) | more than 4 years ago | (#30450168)

The privacy advocate in me is thrilled. The critical thinking side of me feels the logic used to arrive at that ruling is asinine.

The logic used is that:
(1) It is well-established federal case law (articulated by the US Supreme Court, whose decisions on federal questions are binding on the Ohio Supreme Court), in general, law enforcement searches without request require a warrant to be reasonable;
(2) It is well-established federal case law (articulated by the US Supreme Court, whose decisions on federal questions are binding on the Ohio Supreme Court) that a search incident to arrest of the person arrested, including closed containers in their immediate control, is reasonable without a warrant because of the potential for such containers to contain objects which may pose a danger to the arresting officers or the public.
(3) While a cellphone may "contain" data, the date it "contains" is not the same as physical contents of a container discussed in #2 in the manner which makes warrantless searches reasonable.
(4) As a consequence of #3, in the absence of some other exception to the warrant requirement that would apply, the general rule in #1 applies, and a warrant is required.

What part this reasoning do you object to?

The full text of the decision (-1, Flamebait)

Anonymous Coward | more than 4 years ago | (#30448762)

The official text went more like this: "The Ohio state supreme court has decided that a cell phone found on a suspect cannot be searched without a warrant. And Michigan still sucks."

Why would an address book be searchable? (1)

jcr (53032) | more than 4 years ago | (#30448834)

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Seems quite plain to me that someone's address book is part of a person's "papers and effects", and therefore would require a warrant to search.

-jcr

Re:Why would an address book be searchable? (1)

Toonol (1057698) | more than 4 years ago | (#30448978)

That clause doesn't say a warrant is required to conduct a reasonable search; just that people have a right not to be unreasonably searched. There are reasonable searches, such as officers searching a suspect for hidden weapons. Reading through a person's papers generally IS unreasonable... but unfortunately, the boundary is fuzzy. There may be cases when it is actually is reasonable, such as if a police officer has legitimate reason to believe the papers are part of a crime in progress... and the state has a constant tendency to increase the bounds of 'reasonableness'.

Reading comprehension (1)

DragonWriter (970822) | more than 4 years ago | (#30450288)

Seems quite plain to me that someone's address book is part of a person's "papers and effects", and therefore would require a warrant to search.

Read the text of the amendment which you posted: the guarantee regarding "papers and effects" is against unreasonable, not warrantless searches. The second clause governs the conditions in which warrants will be issued, but does not state that warrants are required. Warrants are (despite the absence of any express requirement) generally held to be presumptively required for reasonableness, but there are a number of exceptions to the warrant requirement (but these are not exceptions to the reasonableness requirement.) Search of the person and immediate vincinity of an arrestee incident to arrest -- including closed physical containers -- is one of those circumstances that has been established as an exception to the warrant requirement (largely, justified by public safety concerns with the possibility of physically dangerous objects, including those that might be concealed in a closed container.) This ruling is that that concern does not apply to data in a cellphone, so the phone can't be searched without a warrant.

Good. (1)

TyIzaeL (1203354) | more than 4 years ago | (#30448866)

I'm glad to see this level-headed decision coming out of my own home state of Ohio. I hope eventually similar rulings will be made regarding laptops.

makes sense given the original rationale (2, Insightful)

Trepidity (597) | more than 4 years ago | (#30448896)

If I recall correctly, the original rationale for concluding that warrantless searches incident to arrest are "reasonable" is that: 1) the arresting officer needs to be able to ensure that the suspect is unarmed and not carrying recording devices; and 2) the police need to be able to inventory the subject's possessions in case a future dispute arises over their proper return.

I don't see either of those rationales making sense for searching electronic devices. Unlike with a physical container, where the suspect might be concealing a weapon (point 1), a suspect cannot conceal weapons within the data contained on electronic devices (at least for definitions of "weapon" relevant to ensuring a police officer's safety). An arrestee might, I suppose, later claim that the police stole a valuable item that was never in fact there (point 2), but I think this is considerably more far-fetched than with physical containers--- we're not talking about stealing gold coins out of a purse or something, but maybe destroying data that the arrestee claims is valuable and irreplaceable. Is that concern sufficient to allow police to routinely inventory all data on arrestees' devices? And how would they even inventory it?

Re:makes sense given the original rationale (0)

Anonymous Coward | more than 4 years ago | (#30449038)

why worried about recording devices.. if the cops are innocent, they have nothing to worry about right?

Re:makes sense given the original rationale (2, Insightful)

selven (1556643) | more than 4 years ago | (#30449082)

Recording devices? Recording your own interrogation is a physical threat to the arresting officer?

Re:makes sense given the original rationale (1)

Trepidity (597) | more than 4 years ago | (#30449152)

I may have misremembered that part--- don't recall what the Supreme Court decision establishing the search-incident-to-arrest doctrine was and haven't read it recently, so it might well have only had weapons as a justification.

Re:makes sense given the original rationale (2, Informative)

Trepidity (597) | more than 4 years ago | (#30449196)

Ah, found it, from Wikipedia [wikipedia.org] :

This search is limited to only the person arrested and the area immediately surrounding the person in which the person may gain possession of a weapon, in some way effect an escape, or destroy or hide evidence.

Re:makes sense given the original rationale (1)

clone53421 (1310749) | more than 4 years ago | (#30449094)

the arresting officer needs to be able to ensure that the suspect is unarmed and not carrying recording devices

...wait, what?

Re:makes sense given the original rationale (1)

amRadioHed (463061) | more than 4 years ago | (#30449102)

Recording devices? Why should the police care if the suspect had a recording device? But if fear of recording devices is a legitimate concern that warrants a search, certainly electronic devices would be potential recording devices.

Re:makes sense given the original rationale (0)

Anonymous Coward | more than 4 years ago | (#30449368)

Phewee, look at the replies. That "recording devices" sure unleashed a wave of righteous Slashdot indignation.

Re:makes sense given the original rationale (1)

Shakrai (717556) | more than 4 years ago | (#30450020)

If I recall correctly, the original rationale for concluding that warrantless searches incident to arrest are "reasonable" is that: 1) the arresting officer needs to be able to ensure that the suspect is unarmed and not carrying recording devices;

Actually they can search you for weapons without arresting you, if they have a reasonable suspicion that you are armed. It's called a Terry stop [wikipedia.org] . The search is supposed to be limited to a pat down for weapons but they can seize other contraband if the nature of said contraband is readily apparent to the officer during the course of the frisk, i.e: he's searching you for a knife or firearm but comes across your glass bowl and stash of weed.

Re:makes sense given the original rationale (0)

Anonymous Coward | more than 4 years ago | (#30450206)

Ah - but don't forget... strong encryption is classified as a munition according to US law. So if the cell phone had any encrypted data, by the letter of the law it indeed contained a weapon...
(this is all the more reason to move encryption schemes out of the munitions category)

I broadly agree with the disenting opinion (1)

91degrees (207121) | more than 4 years ago | (#30449002)

I just see the conclusion as backwards. Why do the police have the right to search an address book without a warrant? Doesn't that violate the 4th amendment?

Re:I broadly agree with the disenting opinion (1)

DaveV1.0 (203135) | more than 4 years ago | (#30449140)

You can stick/hide a physical object, including illegal and/or dangerous objects, in an address book. That makes the address book a "closed-container" during an arrest. Officers can search a closed container in the possession of someone being arrested to ensure there is nothing dangerous in the closed container.

mod ukp (-1, Offtopic)

Anonymous Coward | more than 4 years ago | (#30449022)

1TB SD card? (1)

bmimatt (1021295) | more than 4 years ago | (#30449128)

Now I need a 1TB memory card for my cell and a quick call to Apple to get the RMA I need to return my laptop.

The ruling sounds right (4, Interesting)

JerryLove (1158461) | more than 4 years ago | (#30449132)

but the pattern in rulings related to "Terry stops" seems to be the other way. Florida recently ruled that a search of a car someone just left was approprite "to ensure officer safety", though a search of a house was not.

I'm trying to figure out how a knife in a car would pose a danger to a police officer when the owner is sitting in the back of a patrol car.

Sadly: the tendancy for decades seems to be away from protection of the citizen's rights.

Re:The ruling sounds right (0)

Anonymous Coward | more than 4 years ago | (#30449610)

Terry Stops [uslegal.com] seem to cover only persons and not vehicles? Where do I start reading to learn more (other than wiki)?

From TFA: "acting as a police informant" (0)

Anonymous Coward | more than 4 years ago | (#30449154)

The suspect received a call from "a crack cocaine user acting as a police informant".

I would have loved to hear that conversation.

Gotta love poofreaders.

Defining a "closed container" (1)

Slipped_Disk (532132) | more than 4 years ago | (#30449174)

Over-simplifying for the scope of the decision:
A woman's purse with the zipper shut is a closed container. If said woman is arrested police have the right to search her handbag *incident to her arrest*, *assuming probably cause*.

The Ohio Supreme Court decision says that the contents of your cell phone don't fall into that category - i.e. your cell phone is not just a box filled with "data" but rather falls under the 4th amendment's "papers and effects" scope.

(Of course the woman who just had her tampons and birth control pills dumped out on the hood of a police cruiser could argue the same Re: her purse -- the difference being you might have a knife/gun/etc. in the purse)

Somewhat complicated... (2, Insightful)

gedrin (1423917) | more than 4 years ago | (#30449426)

It seems very reasonable that an officer could look through a person's purse or day-timer if they are arrested. Since phones and digital devices are often similar, it really is just another kind of day-timer. However, computers are often a great deal more. It is reasonable for an officer to secure his safety. It is not reasonable for an officer to search through a suspect's family photos or personal messages. For evidence gathering, I would hope most judges and DA's are sophisticated enough to include digital records with other targetted records searches. However, searching a computer at a tarry is unreasonable.

4th Amendment (1)

YesDinosaursDidExist (1268920) | more than 4 years ago | (#30449522)

The search and seizure you are all thinking about is only inside a car, or motor home licensed for road travel. In that case an Officer may search a "closed container" to check for dangerous objects etc. without a warrant. Otherwise, a closed container MAY NOT be searched. A cookie jar inside your house may not be searched without a warrant because its contents are not in the open, thus a "closed container" and thus you have a reasonable expectation of privacy. The same thing applies to your computers, they are a closed container and need a warrant to be searched. In this case, even if your phone is in your car, where your expectation of privacy is diminished, your phone may not be searched without a warrant because it cannot contain anything dangerous, unlike a suitcase in your car may (which may be searched if its inside your car). A little commonsense goes a long way....

Searches "without a warrant" (1)

Monkeyman334 (205694) | more than 4 years ago | (#30449646)

I see all these slashdot stories that complain about government searches "without a warrant," and they all often very misleading. There are plenty of reasons the government can do a "search" without a warrant that are for very legitimate purposes. There are two categories of this misinformation being spread. The first category is like this one, where a search is valid where one of the exemptions apply, which are: in cases of an emergency, if the person gives consent, a search incident to arrest, and an inventory. If a shooting is in progress the police can kick down your door and try to save the people inside without a warrant. They have just "searched" a home without a warrant, big deal. The issue here is a search incident to arrest. If you get arrested the police can search all your belongings and within a reasonable distance to look for evidence of whatever they're arresting you for. There are very legitimate reasons for this. If the police take your car, they conduct an inventory of the vehicle without a warrant (although this isn't really a search, and they can't take apart the doors and things). The second type of misleading information on slashdot is when police get information using a subpoena or court order and Slashdot proclaims "cops conduct search of ________ without warrant!" Which, while true, ignores the fact that the "search" was subject to judicial oversight, but just didn't rise to the need getting a warrant. This is like telling non-technies that their computer is broadcasting an ip address and trying to scare them. You have to understand the 4th amendment more to understand the issues in these decisions. Here, judges are trying to say that the potential evidence of crimes that you carry in your cell phone get more protection than a briefcase with the same information (photos, ledgers, address book, etc.). Which, in my opinion, is hard to justify, and might be taken the Supreme Court.

Good argument to lock your phone (0)

Anonymous Coward | more than 4 years ago | (#30450056)

Phone locking is not really secure, but at least it will stop an officer on the street from going on a causal fishing expedition through your phone.

They would either have to make a court compel you to give up the password or call in forensics to crack the phone. Either way the, there will be more oversight and more time for you to get a lawyer involved.

Load More Comments
Slashdot Login

Need an Account?

Forgot your password?