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California Governor Vetoes Ban On Warrantless Phone Searches

Soulskill posted about 3 years ago | from the take-that-citizens dept.

Cellphones 462

kodiaktau writes "In probably the most important decision Gov. Brown of California will make this year, he has vetoed the bill that would require officers to get a search warrant before searching cellular phones of arrested citizens. This further enables the police to carry out warrantless searches of private property extending into contacts, email, photos, banking activity, GPS, and other functions that are controlled by modern phones. 'He cites a recent California Supreme Court decision upholding the warrantless searches of people incident to an arrest. In his brief message (PDF), he also doesn’t say whether it’s a good idea or not. Instead, he says the state Supreme Court’s decision is good enough, a decision the U.S. Supreme Court let stand last week.'"

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Is there an app for that? (2, Interesting)

Anonymous Coward | about 3 years ago | (#37673158)

I'd like a remote backup and 1-button wipe app...

Re:Is there an app for that? (1)

trout007 (975317) | about 3 years ago | (#37673754)

I'd like to backup and get remotely wiped.

You could just get a dumbphone (2, Insightful)

Anonymous Coward | about 3 years ago | (#37673884)

Do you really need your whole life on your phone? Isn't a contact list and a calendar/alarm (as well as the ability to talk/text) more than enough?

Fun fact: you could use a dumbphone and then do all your email/games/etc from an Ipod touch or some such. Just chuck your touch under your car seat when you see the cop drive up. Then let 'em search your phone...there's nothing there.

How many Californians (2)

Dyinobal (1427207) | about 3 years ago | (#37673172)

So how many Californians will vote for him again? How many will also buy the official line about why they did it, which likely includes 'public safety or protecting the children'

Re:How many Californians (3, Insightful)

Anonymous Coward | about 3 years ago | (#37673194)

How many Californians are actually going to remember this when its time to vote?

About 45 activists who know better. And if they do know better they know damn well that if they vote for the other party, that candidate will be much, much worse.

This isn't something solved by voting. Not anymore.

Re:How many Californians (2)

countertrolling (1585477) | about 3 years ago | (#37673326)

...if they vote for the other party...

What other party?

Re:How many Californians (0)

Anonymous Coward | about 3 years ago | (#37673386)

The silly party, and the VERY silly party?

Sensible party was voted out years ago.

(I leave that to whatever political slants you want to insert)

Re:How many Californians (1)

J'raxis (248192) | about 3 years ago | (#37673652)

Those 45 people should move [freestateproject.org] somewhere like New Hampshire [nhliberty.org] .

Re:How many Californians (2, Informative)

Anonymous Coward | about 3 years ago | (#37673914)

Oh yeah New Hampshire is a free state.

Wiretapping gone wrong [techdirt.com]

Re:How many Californians (1)

gearloos (816828) | about 3 years ago | (#37673268)

Umm.. like 95% of them. I live in this crappy state and can tell you- You should see what we have walking around here. Disclaimer: No turtles, Spotted Owls, Fish, or Illegal Immigrants were harmed in my thinking of a response to post. Thats the kind of atmosphere it is in this state. If I could only find a job elsewhere....

Re:How many Californians (0)

Anonymous Coward | about 3 years ago | (#37673470)

I voted for him, and I'd support a recall in an instant. I have no love for the guy.

Re:How many Californians (1)

Anonymous Coward | about 3 years ago | (#37673528)

Don't forget that colony of ants that held up widening of the road for 6 years in San Jose, total retardation to choke 5 lanes down to 2 to save some fucking ants.

My advice: pack up and move already.

I fled the state in 2003 and have never looked back. Packed up the wife and kids and everything I had, no job on the horizon, I headed east, ended up in PA, got a decent paying job in Harrisburg, then upgraded my job by moving to the Twin Cities, MN, and now I make more than what I made in Calif without all the retarded overhead that Calif imposes and my commute is 10 mins to work. Gray Davis had promised no new taxes when he was re-elected, instead they were going to "fee" you to death. It was when I got the bill in the mail in the fall of 2003 to register my car... $483 those fuckers wanted for a 5 year old Subaru Outback, the year before it was only $175 to register my car.

Yeah, it was at that point that I said "FUCK YOU CALIF" and packed up and left.

Re:How many Californians (1, Informative)

The_K4 (627653) | about 3 years ago | (#37673442)

None. He's term-limited. He CAN'T run for Governor again.

Re:How many Californians (4, Informative)

larry bagina (561269) | about 3 years ago | (#37673630)

There is a two-term limit but it only applies to terms served after November 6th, 1990. For term limit purposes, this is his first term.

Re:How many Californians (0)

Anonymous Coward | about 3 years ago | (#37673686)

Are you sure about that? I think he's eligible for one more term after this. [ballotpedia.org]

Re:How many Californians (0)

Anonymous Coward | about 3 years ago | (#37673932)

Actually he can run again. Who's up for some more malathion coolaid? [wikipedia.org]

Re:How many Californians (1)

Freddybear (1805256) | about 3 years ago | (#37673918)

This is Jerry Brown we're talking about. California voters had to be seriously history-impaired to vote for him this time. Not that his Repub opponent was any prize, but really, electing Governor Moonbeam again? What were they thinking?

Re:How many Californians (1)

Dr Herbert West (1357769) | about 3 years ago | (#37673986)

I won't vote for him again. For some reason I thought "Governor Moonbeam" was a different fella than this "Governor E-Cavity Search".

Re:How many Californians (4, Insightful)

PCM2 (4486) | about 3 years ago | (#37673988)

See, the thing is, California in its present state is more or less ungovernable. I and others who voted for Jerry Brown did so, at least to some extent, because as a former governor he was uniquely situated to be honest about this, and was prepared to work within the limitations of his office. Becoming governor was hardly going to be a feather in his cap when he'd already served two terms. He's also campaigned both for the Senate and the Presidency in the past; both campaigns failed. His last executive position was as Mayor of Oakland, where opinion about him was pretty mixed. So in a way, he has more to prove than any other candidate if he still harbors further political ambitions. People know him too well. I believe he's content to be what he is: a career California politician who just wants to make a difference. I, for one, certainly don't envy him the position of governor.

Would I vote for him again? That depends on many things. Remember, last time he ran against Meg Whitman.

California Uber Alles! (0)

Anonymous Coward | about 3 years ago | (#37673210)

Mellow out or you will pay!

Vote 'em out (1)

StuartHankins (1020819) | about 3 years ago | (#37673214)

If they want to be this way, vote 'em out. Bastards.

Re:Vote 'em out (4, Insightful)

ohnocitizen (1951674) | about 3 years ago | (#37673254)

Its becoming a race to the bottom, with all three branches of government at both the federal and state level pushing each other to invade privacy and erode rights further and further. Putting either a Democrat or Republican in office doesn't seem to be doing anything at all. What exactly does that leave? Who do we replace them with (when voting them out is even an option). Several members of the Supreme Court have indicated they sit on the bench to further corporate interests at the expense of individual rights. What recourse do we have?

Re:Vote 'em out (3, Insightful)

dkleinsc (563838) | about 3 years ago | (#37673276)

And vote in who? That's the problem, there is no candidate or major party right now that could come close to winning a stamp of approval from folks who care about civil liberties.

Re:Vote 'em out (1)

hedwards (940851) | about 3 years ago | (#37673382)

That can be an issue, we have that problem around here with some of the local elections, seems like we're constantly voting against the incumbent. And we don't seem to ever run out of bad candidates to vote for.

From what I've read, it sounds like CA has similar problems at the state level, plenty of folks to vote for, but none of whom really ought to be elected.

Re:Vote 'em out (0)

Anonymous Coward | about 3 years ago | (#37673434)

Replace the whole system with direct democracy via the Internet. Representative democracy only evolved because of technological constraints that no longer exist.

But what about security blah blah blah - if the Internet is secure enough for banking it is secure enough for voting. The results couldn't be any worse than what we have now.

Re:Vote 'em out (5, Informative)

Jane Q. Public (1010737) | about 3 years ago | (#37673724)

"And vote in who? That's the problem, there is no candidate or major party right now that could come close to winning a stamp of approval from folks who care about civil liberties."

Really? Are you going to be like most of the media outlets that have ignored Ron Paul?

In 30 years of politics, he has never broken a campaign promise; he has invariably voted exactly the way he said he would. He has consistently voted against unconstitutional laws, even when his stance was unpopular.

He predicted exactly the current economic situation well before it happened, when all the others were exclaiming about how well the economy was doing, right up to the crash in 2008. (Herman Cain, for example, is on video proclaiming the wonderful state of the economy, one week before the crash.)

The difference between Paul, and the other current candidates who have been saying things people have been wanting to hear, is that Paul has been consistently saying the same things for many years. The others are just saying them because they know that's what people want to hear.

And he has been consistently leading in the polls, and also making good campaign money. He received twice as much campaign money from enlisted military personnel than all the other GOP candidates combined, and more than Obama as well. That should tell you something.

He has also been leading the straw polls.

So, to summarize: he has proven himself to be honest, he has been dedicated to changing government in a good way, even when that view was unpopular, and he is popular. What more do you want?

Re:Vote 'em out (1, Insightful)

Cyberax (705495) | about 3 years ago | (#37673786)

Ron Paul was 'predicting' the current situation since well into 90-s. So no, it doesn't count. And during the crisis he's been constantly mis-predicting, well, everything (runaway inflation, hellllo?).

Then he has inconsistent views, basically have religious freedom is OK, unless you're not a Christian.

And last, but not least - his recipes to help the economy are disastrous.

Re:Vote 'em out (2)

mnewcomb (1042270) | about 3 years ago | (#37673952)

You sound like you care about your civil liberties yet don't know about Ron Paul? Either you don't really care or you have been sleeping under a rock.

Re:Vote 'em out (4, Insightful)

Jeremi (14640) | about 3 years ago | (#37673280)

If they want to be this way, vote 'em out. Bastards.

All well and good in theory, but in practice it only helps if the alternative isn't even worse. And in the contemporary US, the alternative to a lousy Democrat is usually a much lousier Republican.

(Yes, I know about third party candidates. Unfortunately, our elections are set up in such a way that the only real effect third party candidates can have is to siphon support away from the mainstream candidate they most resemble... which means that voting third party makes it less likely that the third party's policy goals will be realized. Sad, but true.)

Re:Vote 'em out (1)

StuartHankins (1020819) | about 3 years ago | (#37673358)

+1 Insightful. I hate when my idealism doesn't match reality.

Re:Vote 'em out (0)

anagama (611277) | about 3 years ago | (#37673418)

It is important to vote third party because winning isn't always the point. If enough people go third party, it can effect the discussion of issues and bring some sanity to the Demoplican and Republocratic parties.

Secondly, the surest way to positively make it impossible for a third party to gain traction, is to never vote for a third party.

And finally, a lesser evil is still evil. Take for instance the last presidential election. Civil liberties would have been better off if Obama had not won, because then the Democrats would have continued to pretend to care about civil liberties and would have pushed back against a Republican doing what Obama is doing. So really, the lesser evil turned out to be a greater evil.

Re:Vote 'em out (0)

Anonymous Coward | about 3 years ago | (#37673454)

Well put.

Re:Vote 'em out (0)

Anonymous Coward | about 3 years ago | (#37673834)

It is important to vote third party because winning isn't always the point. If enough people go third party, it can effect the discussion of issues and bring some sanity to the Demoplican and Republocratic parties.

Secondly, the surest way to positively make it impossible for a third party to gain traction, is to never vote for a third party.

And finally, a lesser evil is still evil. Take for instance the last presidential election. Civil liberties would have been better off if Obama had not won, because then the Democrats would have continued to pretend to care about civil liberties and would have pushed back against a Republican doing what Obama is doing. So really, the lesser evil turned out to be a greater evil.

...and before the third party actually wins, you have consistently put "that other party" in office for many, many years, and they will gladly do a thousand Citizens United fiasco. Good job.

Re:Vote 'em out (0)

Anonymous Coward | about 3 years ago | (#37673688)

All well and good in theory, but in practice it only helps if the alternative isn't even worse. And in the contemporary US, the alternative to a lousy Democrat is usually a much lousier Republican.

My impression isn't that Republicans are "lousier", but rather that Democrats have better PR.

Re:Vote 'em out (1)

Attila Dimedici (1036002) | about 3 years ago | (#37673848)

You know, you could always, gasp, get involved during the primaries and select a different party candidate. If you want a different slate of candidates you need to get more involved before and between elections.

contracting a virus (0)

Anonymous Coward | about 3 years ago | (#37673230)

so who`s responsible if they get a mobile virus like the drone force hopefully not the person who`s phone was taken

Re:contracting a virus (1)

hedwards (940851) | about 3 years ago | (#37673390)

If they're doing it correctly, there shouldn't be any viruses exchanged. There's no reason why they should be executing random files from the image of the phone's memory, and there's definitely no reason why they should be mucking around on the phone itself other than to dump the contents of the memory to image.

Re:contracting a virus (0)

Anonymous Coward | about 3 years ago | (#37673524)

i think the air force thinks the same way with better protection huh?

Occupy Movement. (4, Insightful)

unity100 (970058) | about 3 years ago | (#37673236)

Every other day we are seeing another example of how the ones who were supposed to exercise power on behalf of the people have become enemies of the people.

Some people utter empty stuff like "vote em' out" and whatnot - but, if it has been possible, we wouldnt have been in this situation have we ? whomever you vote, result is the same. the machine has been usurped by those who serve the few. laws work differently for the rich and the poor.

can you say with a rational mind that, things like occupy movement are unnecessary in such a world ?

Protests are talk, votes and spending are actions (1)

drnb (2434720) | about 3 years ago | (#37673822)

Some people utter empty stuff like "vote em' out" and whatnot - but, if it has been possible, we wouldnt have been in this situation have we ? whomever you vote, result is the same. the machine has been usurped by those who serve the few. laws work differently for the rich and the poor.

The flaw in your logic is that you do not consider voter complacency or apathy. The fact is that most voters are loyal to their party. Party loyalty is responsible for many of our current problems. If you loyally vote for *your* party then your party can ignore you because your vote is secure, and the other party can ignore you because they can do nothing to earn your vote. Those who vote based upon a theoretical party platform are a big part of the problem. People need to make politicians realize that they will cross party lines for the slightest reason. This is the only way to make politicians responsive to the voters, to make politicians fear that there is no base they can rely upon.

Similarly consumers are in control, not corporate CEOs. Again the problem is consumer complacency or apathy. Corporate greed is actually a tool of control for the consumer since the consumer controls where their money is spent. The consumer can reward a company that behaves in a manner they prefer by giving them their business, and thereby punish another company that behaves in a manner they disapprove of. The result is that if enough consumers behave in this manner then the profit incentive, greed, tells companies to behave in a manner consumers approve of. If all CEOs care about is money then wave the money in the direction you want the CEO to go. The problem is that consumer seem to have no consideration other than a low price. So consumers get what they incentivize, low prices, regardless of how those prices are attained.

So you want change. Vote against politicians who behave against your wishes regardless of party and turn away from companies that behave against your wishes. Protests will accomplish little beyond raising awareness and educating individuals. Talk must be followed by action. Protests are talk, votes and spending are actions.

Terrible reason for veto; Let courts do their job (5, Interesting)

Scott Swezey (678347) | about 3 years ago | (#37673238)

Wow. It was my impression that the supreme court judged cases based on existing law, and the legislature wrote new law. Perhaps the legislature wrote this law because it disagreed with the recent court decision. Part of why the legislature exists is to create and/or update laws in response to changing times and public opinion.

To Governor Brown: If the supreme court believes this law is unconstitutional, they can strike it down. Don't overstep your powers and do this for them. Unless *YOU,* on behalf of your constituents, have a specific objection: let the law pass.

(For the record, I live in CA and voted for Jerry Brown in the last election)

Re:Terrible reason for veto; Let courts do their j (1)

magarity (164372) | about 3 years ago | (#37673532)

To Governor Brown: If the supreme court believes this law is unconstitutional, they can strike it down. Don't overstep your powers and do this for them. Unless *YOU,* on behalf of your constituents, have a specific objection: let the law pass.

(For the record, I live in CA and voted for Jerry Brown in the last election)

The SCOTUS *already* struck down something similar; the governor is saving his cash strapped state millions of dollars in legal expenses which he is confident would just result in them pointing at said case they've recently already decided and asking "Did you not pay attention the first time?"

Re:Terrible reason for veto; Let courts do their j (2)

Scott Swezey (678347) | about 3 years ago | (#37673738)

It was the supreme court of the state of CA, not SCOTUS, and since they didn't rule that a specific law was unconstitutional, I believe a new law would supersede their decision... unless of course they ruled that the new law violated the state constitution.

Remember, the court makes decisions within the bounds of current law. Unless a law violates the constitution, the courts are overridden by the law. Not the other way around.

Re:Terrible reason for veto; Let courts do their j (1)

larry bagina (561269) | about 3 years ago | (#37673750)

This would be a ban on the police/state doing something, not a ban on the citizens doing something, so there's no need for constitutional review.

Re:Terrible reason for veto; Let courts do their j (1)

dougmc (70836) | about 3 years ago | (#37673962)

To Governor Brown: If the supreme court believes this law is unconstitutional, they can strike it down. Don't overstep your powers and do this for them. Unless *YOU,* on behalf of your constituents, have a specific objection: let the law pass.

Well, it seems that the Governor of California swears an oath that starts out like this --

"I, ______, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California ...

It seems to me that if he thinks a bill is unconstitutional (no matter how much *I* might like the bill) it's his duty to veto it.

I'm not saying that this is why he vetoed it -- I don't know why -- but I'm simply saying that vetoing it for being unconstitutional would not strike me as an overstepping of his powers if he really does think it's unconstitutional.

Override? (5, Interesting)

Mr. Shotgun (832121) | about 3 years ago | (#37673246)

According to TFA, the bill was approved with 70-0 in the assembly and 32-4 in the state senate. Can't they just override this asshat?

Re:Override? (3, Insightful)

RobinEggs (1453925) | about 3 years ago | (#37673292)

Yes, and he knows it will be. This is just some weird way of making a position statement, I assume.

It takes two-thirds in each chamber to override in California, just as with the federal legislature. Brown must know his veto is useless, so ergo he's bluffing or posturing somehow.

Re:Override? (1)

Mr. Shotgun (832121) | about 3 years ago | (#37673560)

Yes, I suppose you are right, the article also links to the fact that Brown took a sizable amount of donations from various police organizations for his reelection campaign. I guess that may explain why he went Don Quixote on this one. Still sucks that politicians would be so aligned against the wishes of their constituents but what can be expected in this day and age. Thanks for the info. Hopefully the legislature does not lose it's resolve when it comes back to them.

Re:Override? (2, Interesting)

ShakaUVM (157947) | about 3 years ago | (#37673748)

>>Yes, I suppose you are right, the article also links to the fact that Brown took a sizable amount of donations from various police organizations for his reelection campaign.

Which also explains why California just banned open carry. (http://www.cbsnews.com/8301-503544_162-20118261-503544.html)

I love how they can take the second amendment, which guarantees the right to "bear" arms, and then pretend that word simply doesn't exist.

Arnie wasn't nearly as bad as Governor Moonbeam.

Re:Override? (0, Troll)

Windows Breaker G4 (939734) | about 3 years ago | (#37673956)

As part of a well regulated militia. Why do people always just over look the part of a well regulated militia?

Re:Override? (-1)

Anonymous Coward | about 3 years ago | (#37673964)

I think you only have open carry activists to blame for the ban on carrying unloaded handguns. They are clearly outside of the mainstream, but they went out of their way to force themselves on the mainstream. Is the ban a good thing? I'm not sure, but I know that I will feel safer if the guy next to me doesn't have a handgun on his hip.

Re:Override? (0)

Anonymous Coward | about 3 years ago | (#37673830)

or just careless or stupid?

Re:Override? (1)

TubeSteak (669689) | about 3 years ago | (#37673860)

It takes two-thirds in each chamber to override in California, just as with the federal legislature. Brown must know his veto is useless, so ergo he's bluffing or posturing somehow.

How do you veto a law that was passed with more than 2/3rds in each body?

Re:Override? (0)

Anonymous Coward | about 3 years ago | (#37673602)

So in other words, the summary was wrong. It should have said "In probably the LEAST important decision Gov. Brown of California will make this year..."

California Uber Alles! (0)

Anonymous Coward | about 3 years ago | (#37673278)

"I am Governor Jerry Brown
  My aura smiles
  And never frowns
  Soon I will be president..."

Re:California Uber Alles! (1)

anagama (611277) | about 3 years ago | (#37673604)

There's a different version on Plastic Surgery Disasters/In God We Trust, released in 1981 but kind of prescient. From the track

Last call for alcohol.
Last call for your freedom of speech.
Drink up. Happy hour is now enforced by law.
. . .
You'll go quietly to boot camp
They'll shoot you dead, make you a man
Don't you worry, it's for a cause
Feeding global corporations' claws


Die on our brand new poison gas
El Salvador or Afghanistan
Making money for President Reagan
And all the friends of President Reagan


California Uber alles
Uber alles California

http://www.youtube.com/watch?v=PfH263OAG0A [youtube.com]

He had to (2)

gearloos (816828) | about 3 years ago | (#37673296)

Brown had to- Otherwise how could he listen in to be sure we weren't plotting something like..oh, I don't know, maybe not giving all our money to illegal aliens so they can go to school here and take seats away from the residents like the other bill he is supposed to sign. He is really trying hard to ruin this state. Almost as hard as Obama is trying to ruin this country.

Re:He had to (0)

countertrolling (1585477) | about 3 years ago | (#37673392)

Illegal "aliens"? You mean they're not from earth? And they're stealing your seat? Well dammit, make more seats!

Re:He had to (0)

Anonymous Coward | about 3 years ago | (#37673518)

Perhaps you would have been more satified had hebused Wetbacks. There is no substitute for the abyss that is a liberals ignorance.

Re:He had to (0)

Anonymous Coward | about 3 years ago | (#37673694)

I disagreed with many policies under Bush but I never thought he was 'trying to ruin this country'. It's generally much easier to get most people to vote for you in this country by getting them to hate the other guy. Unfortunately much of the population can be manipulated just by pointing out all of the things the other guy does that you disagree with. Never mind that politicians as a whole make decisions none of us agree with. Whether focusing our attention on the rich or illegal immigrants our politicians manipulate us with these tried and true tactics.

I'm much more interested in who you are going to vote for and why.

Bullshit (2)

FyberOptic (813904) | about 3 years ago | (#37673304)

So does this mean if I had an SSH client on my phone, with a certificate installed to automatically log me in to a private server at my home, that police can search my home computer via my phone as well?

I think it's fair to make the same comparison of them looking at my Facebook or Twitter account as well, because that's private data which is password-protected. The fact that my phone is automatically logged into those services does not change that fact. Much the same as if they went to my house and my door was unlocked. They're not allowed inside, regardless.

Computer laws in this country, and lack there-of, is definitely a concern.

Re:Bullshit (0)

Anonymous Coward | about 3 years ago | (#37673372)

So does this mean if I had an SSH client on my phone, with a certificate installed to automatically log me in to a private server at my home, that police can search my home computer via my phone as well?

Passphrase-protect your certs? You really need to treat your phone like something that could be stolen at any moment, by the police or by your run-of-the-mill thief.

I really can't understand these people who put all sorts of sensitive information on their phone. Banking passwords? Naked pictures? Unless your phone is attached to your sternum by a titanium chain, you're making a huge mistake.

Re:Bullshit (2)

FyberOptic (813904) | about 3 years ago | (#37673402)

Passphrase-protect your certs? You really need to treat your phone like something that could be stolen at any moment, by the police or by your run-of-the-mill thief.

I really can't understand these people who put all sorts of sensitive information on their phone. Banking passwords? Naked pictures? Unless your phone is attached to your sternum by a titanium chain, you're making a huge mistake.

Oh trust me, I would never leave password-less access to any server I operate on a phone or portable device, for the reasons you mention. But I was posing an important question regarding personal privacy, because I should be able to do such a thing if I chose without worrying about police unlawfully accessing it just because they have the phone.

"It's the suede-denim secret police.." (1)

n5vb (587569) | about 3 years ago | (#37673306)

".. we have come for your uncool niece! .."

When you mess with President Brown! (1)

swb (14022) | about 3 years ago | (#37673864)

DIE on organic poison gas
Serpent's egg's already hatched
You will croak, you little clown
When you mess with President Brown
When you mess with President Brown

California Ãoeber Alles!

unfortunately, he's right (0)

Anonymous Coward | about 3 years ago | (#37673308)

unfortunately, the Gov is correct - we should not need a law to enforce the 4th Amendment.

from a purist point of view, fewer laws are better. from a practical point of view, I hope the state senate overrides his veto!

I called the governor's office and both of my state representatives. And the ACLU.

It will be interesting to see where this goes (3, Interesting)

einhverfr (238914) | about 3 years ago | (#37673342)

As I understand it from reading Prof. Orin Kerr's blogs and law review articles, this is a developing area of Constitutional law. Searches incident arrest are not intended to be something that allows an officer to search all locked containers within arms reach of the suspect when he is arrested, as I understand it. So the question really comes down to what category a phone falls into. And not all phones may be created equal. It may be that smart phones are entitled to more protection than low-end cell phones. But as the US Supreme Court has not been clear on this yet, it's up to the state and circuit courts to try to sort this issue out.

So in the end, the veto may or may not amount to anything.

Correct me if I'm wrong (1)

dubbayu_d_40 (622643) | about 3 years ago | (#37673406)

Everyone complaining above agrees that an officer who arrests a hit and run offender should not be allowed to search the defendants phone to see if they were talking / texting at the time of the accident?

Re:Correct me if I'm wrong (3, Insightful)

redshirt (95023) | about 3 years ago | (#37673460)

That's right. The officer doesn't. Those records are actually best and easily obtained from the wireless carrier with a warrant. The evidence (in your example) won't change state if the investigators follow the constitution.

Re:Correct me if I'm wrong (1)

Anonymous Coward | about 3 years ago | (#37673476)

Yes, and your attempt to use an appeal to emotion to damage meaningful debate is disgusting.

It is entirely possible to obtain a proper warrant for such a search. There should not be any warrant-less search permissible, whether of phones or anything else, whatever the situation. I'm still confused as to how this is unclear to the courts.

Re:Correct me if I'm wrong (1)

goldspider (445116) | about 3 years ago | (#37673500)

"Everyone complaining above agrees that an officer who arrests a hit and run offender should not be allowed to search the defendants phone to see if they were talking / texting at the time of the accident?"

I'm certainly not comfortable with your average highway patrolman making such a determination.

Re:Correct me if I'm wrong (2)

Known Nutter (988758) | about 3 years ago | (#37673510)

Everyone complaining above agrees that an officer who arrests a hit and run offender should not be allowed to search the defendants phone to see if they were talking / texting at the time of the accident?

Sure, search it. With a warrant.

Re:Correct me if I'm wrong (1)

wierd_w (1375923) | about 3 years ago | (#37673548)

Correct.

The slippery slope invasion of privacy required to bust that oh so naughty texter is not worth the downsides of having to prove before a state judge that what the prosecutor "found" on the phone is complete bunk that they planted there, or trying to prove to a court after the fact that an officer of the law purposefully destroyed evidence of his beating in the face of an innocent (until proven guilty) person on the street after he charged and arrested you for interfering with the police, or for wiretapping.

Catching a texter is not sufficient to warrant that invasion.

Re:Correct me if I'm wrong (2)

Mr. Shotgun (832121) | about 3 years ago | (#37673650)

Yes! because it is not the officers job to build a case at the time of arrest. That can be done by the district attorney using the existing methods at their disposal, namely warrants and subpoenas. The officer can make note of and seize items immediately noticeable, such as an open bottle in the passenger seat or the fact that a driver had a cell phone. But items that require more detailed investigation, like the contents of a cell phone, should be accompanied by a warrant authorizing the search, which any judge would sign off on if it is relevant to the case. If cops want to go fishing, they can grab a pole and head to the wharf like everyone else. Not do it on someone else's personal papers.

Re:Correct me if I'm wrong (1)

dubbayu_d_40 (622643) | about 3 years ago | (#37673788)

This makes sense. I stand corrected.

Re:Correct me if I'm wrong (1)

Mr. Shotgun (832121) | about 3 years ago | (#37673958)

No problem dude, besides which the DA can also get the call and data transfer records from the provider, which he can match to the 100% lawfully obtained cell phone's inbound and outbound records (warrant), building a much better case than an officer's account of his search of the cell phone while at the scene when there is all sorts of emotional drama.They do things right and the evidence will speak for itself.

Re:Correct me if I'm wrong (1)

roc97007 (608802) | about 3 years ago | (#37673658)

Yeah. That's pretty much it. Because the crime of which you are accused doesn't make illegal search and seizure suddenly ok.

Besides, that's somewhat of a bad example, as (a) what's available on the phone isn't much different than what's available from the service provider, after the usual court order process (which would certainly be granted in an injury hit-and-run), and (b) it's already been shown that message time stamps aren't necessarily accurate. A woman was prosecuted not long ago based on a text message that was happening at the estimated time of the accident, but the case fell apart in court due to the uncertainty of text time stamps.

Consider, you go out to the car, text your girlfriend to meet you somewhere, put your phone away, and start the car. Your phone doesn't send the text right away because you have no bars. Six blocks away you get into an accident, but -- drat -- your phone just got bars and sent the text, making it look like you're texting and driving. The cop checks your phone, and the cuffs go on. So sad.

Of course, that could never happen.

Because this is slashdot. We don't have girlfriends.

Re:Correct me if I'm wrong (1)

Surt (22457) | about 3 years ago | (#37673660)

Certainly not without a warrant, are you crazy?

Re:Correct me if I'm wrong (0)

Anonymous Coward | about 3 years ago | (#37673764)

Everyone complaining above agrees that an officer who arrests a hit and run offender should not be allowed to search the defendants phone to see if they were talking / texting at the time of the accident?

Not relevant - hit & run is a criminal offense, period. Talking & driving is typically a minor ticket.

Talking & driving might indicate that you were at fault in a collision, but hit & run is a different offence. With hit & run you fled the scene of a collision, regardless of whether you were at fault in causing the collision.

Re:Correct me if I'm wrong (1)

larry bagina (561269) | about 3 years ago | (#37673820)

And maybe he was shoving gerbils up his ass. Body cavity search! And maybe he was thinking about a 12-year old boy locked in his basement. Better do a warrantless search of his house. And maybe he's a terrorist with a bomb up in the trunk. Better shoot him just to be safe.

Oh, back to your question: hit and run is a crime regardless of motive or cause. The police should take his statement, arrest him, and let the defendant and DA deal with the particulars of the circumstance.

Re:Correct me if I'm wrong (0)

Anonymous Coward | about 3 years ago | (#37673910)

Your example is somewhat skewed in the eyes of the law as the officer may have reasonable suspicion or probable cause to believe the phone was an integral part of the crime. Where as with the law before this bill, any cell phone can be searched by an officer as part of a search incident to arrest and whether a phone was involved in the commission of a crime doesn't matter. And its very much a violation of the 4th amendment.

Re:Correct me if I'm wrong (1)

einhverfr (238914) | about 3 years ago | (#37673974)

No. Require a warrant unless the search incident arrest exception is properly at issue. BTW, if you throw your phone into the back seat out of arms reach when the officer pulls you over, then it can't be searched incident arrest.....

Balance anyone? (1)

ebonum (830686) | about 3 years ago | (#37673420)

Good to see the Democratics acting as a counterbalance to the Republicans.

What is next? Open season on the baby seals in Monterey Bay?

Re:Balance anyone? (2)

Anonymous Coward | about 3 years ago | (#37673654)

Good to see the Democrats acting as a counterbalance to the Republicans.

Big government Republicans and big government Democrats both lead to a loss of rights. It's not the party, it's the Big Government; it is incompatible with citizens rights. I'd suggest voting for libertarianesque Republicans or Tea Party (Not all of them, I know!). Those people don't want the goverment to fuck with you so they shouldn't go against your social agenda even if they don't agree with you. I know it's hard if you hold the view that the government should help people, but there really only are two options; a small government OR an intrusive one.

Re:Balance anyone? (1)

roc97007 (608802) | about 3 years ago | (#37673676)

Yeah, but not with firearms, because California Democrats hate them. I'm thinking.... Frisbees. No... Harpoons? Oh hell no. Um,,,, syringes on sticks?

This is why (1)

ellenbee (978615) | about 3 years ago | (#37673426)

I use an older crappy nokia phone that just does calls and text messages.. No email, no internet, etc etc.. Too afraid of losing a fancy smartphone with a bunch of "stuff" in it.. This is one more reason not to carry your whole life with you in one little package.

"In probably the most important decision..." (2)

Lando242 (1322757) | about 3 years ago | (#37673436)

Really? THE most important? California is the most populous state in the Union and is in the middle of a budget crisis, its school system is in disarray, its unemployment rate is over 12%, there is a huge drug trafficking problem, human trafficking problem, public official corruption problem and whether a cop can search your *phone* is the largest issue on the Governor's plate for the ENTIRE YEAR? Who thinks this? Are these the same people that agonize over which color sweater their dog should wear this winter? Stuck in the supermarket for hours deciding on getting the regular or fancy mustard? Come on people.

I'm all for laws requiring the government to get its ducks in a row before they start pawing through my stuff and I think that veto was a poor choice on the Governor's part but this is by far NOT the most important issue in California's near future.

Re:"In probably the most important decision..." (1)

syousef (465911) | about 3 years ago | (#37673568)

Perhaps he had already decided to do nothing about all those other problems.

Re:"In probably the most important decision..." (1)

OFnow (1098151) | about 3 years ago | (#37673840)

Nobody with sense thinks it's most important. One hopes that elected officials are capable of understanding and dealing with more than one issue per...day?week? Searching a phone without a warrant is, IMO, totally wrong, but I don't fault the Gov for doing more than one thing today... But this action seems wrong -- assuming he really did veto a requirement for a warrant (and why the heck is such a bill needed? Yeah, recent history. But boy things are screwed up.).

Where have ye gone, Jerry Brown? (1)

Mr. Underbridge (666784) | about 3 years ago | (#37673448)

If a liberal like Jerry Brown won't support basic civil liberties, who the hell will?

Re:Where have ye gone, Jerry Brown? (4, Insightful)

anagama (611277) | about 3 years ago | (#37673760)

Don't confuse Democrats with Liberals or Republicans with Conservatives. Neither are either.

Why do we need a law? (2)

Charliemopps (1157495) | about 3 years ago | (#37673508)

Why do we need a law when warrentless searching of ones personal documents is clearly a violation of the constitution? Oh, that's right, we don't have a constitution anymore. I forgot.

Q: ARE phones mandated by the government. . . (1)

eyenot (102141) | about 3 years ago | (#37673542)

. . . property of government thus not subject to "Warrant" being their property by default, especially if you sign any contract to "relinquish service" or "relinquish ownership" or otherwise "relinquish [rights]" in the involvement? Or, should we always ask them to serve a warrant when they want to get the data off the wire they let us carry around?

there should be an app for that (1)

roc97007 (608802) | about 3 years ago | (#37673576)

I'm thinking an app that quickly resets your phone back to factory condition (and blanks the SD card) would be really popular in California about now.

Maybe a gesture followed by a long press, something that isn't obvious, couldn't be done accidentally and is unlikely to be done by your butt. Or, I know, a particular pattern of the volume control up and down arrows. With many phones this could be done without even taking it out of the holster.

Or (this would be really cool) the app would quickly substitutes a list of LEO phone numbers and photos of LEOs in uncompromising positions. (You know they're out there -- it'd just take some looking.) Or... ok, so where was that sex tape of Jerry and Linda again?

So, where did your original stuff go? Well, you do back up your phone, don't you?

Or even easier, a "stunt phone" you keep on your hip, with the real phone stashed in a nonobvious place. It's all the same to Bluetooth.

In other words, this will only entrap the terminally stupid.

Deliberately ignoring the Bill of Rights (4, Informative)

sjames (1099) | about 3 years ago | (#37673594)

According to the World English Dictionary:

1. Also called: personal effects personal property or belongings

According to the Bill of Rights:

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.

What about that is so complicated that the courts and the governor can't understand it? A cellphone is an effect and the Bill of rights says you need a warrant to search those. It offers no exceptions.

Re:Deliberately ignoring the Bill of Rights (2)

bussdriver (620565) | about 3 years ago | (#37673858)

The KEY is that it is unlocked. They can take the knife from your pocket without permission and check any blood it may have on it. Also, "reasonable" is subjective. A digital pocket holding digital items of interest is what we are dealing with here.

If you lock it poorly and they get in without warrants then what is "reasonable" comes into play in a totally different way. You have the "expectation of" privacy/security clearly indicated when it is locked so then it should be unreasonable to search it. What is locked? is a PIN to unlock the phone enough? full encryption?

If it's locked (1)

koan (80826) | about 3 years ago | (#37673620)

If the phone is locked I don't think they can search without a warrant, if it is open to use then they can.

Re:If it's locked (0)

Anonymous Coward | about 3 years ago | (#37673796)

Actually they can, they can ask you to unlock it first, its the whole "if you're not guilty, you have nothing to hide, so unlock it already" bullshit. There's very little in the way of privacy anymore these days.

There was a court case in 2009 in which a defendant was forced to enter in their encryption pass-phrase so that the prosecution could use the data on the defendant's hard drive to convict them, there was a lot of arguing about the act of self incrimination and in the end the court ruled that the defendant can be reasonably compelled to unlock the encrypted device for the data to be perused. With a precedent like this being set, I can totally see this being passed onto any digital media you own down to your cell phone.

linkage: http://news.cnet.com/8301-13578_3-10172866-38.html

CONFUSING?? (0)

Anonymous Coward | about 3 years ago | (#37673684)

LOL This article's title was confusing. I have to really think about it for a minute...

Consider that someone's phone can't be searched without a warrant...now add:
WARRENTLESS PHONE SEARCHING
BAN ON WARRENTLESS PHONE SEARCHING
VETO OF BAN ON WARRENTLESS PHONE SEARCHING

so... that's BAD I guess!! (triple negative) Oh well! I'm glad I don't live in California!!

Fuck him. (0)

crhylove (205956) | about 3 years ago | (#37673828)

Seriously, that's my whole comment. Fuck that nazi piece of shit.

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