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SCOTUS To Weigh Smartphone Searches By Police 201

Posted by timothy
from the hey-it-clearly-says-papers-and-effects dept.
schwit1 writes "The U.S. Supreme Court agreed on Friday to decide whether police can search an arrested criminal suspect's cell phone without a warrant in two cases that showcase how the courts are wrestling to keep up with rapid technological advances. Taking up cases from California and Massachusetts arising from criminal prosecutions that used evidence obtained without a warrant, the high court will wade into how to apply older court precedent, which allows police to search items carried by a defendant at the time of arrest, to cell phones."
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SCOTUS To Weigh Smartphone Searches By Police

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  • by Anonymous Coward on Friday January 17, 2014 @10:57PM (#45995633)

    Unwarranted access to a phone doesn't sound like that big a deal.

    The phone component has become a minor feature of today's Galaxy S5 or iPhone 5. The device is computer as powerful if not more than your desktop or laptop 10 years ago. More memory, faster processor, camera, video/audio recorder, movie and song player, ability to run applications, etc.

    In 10 years who knows what they will be able to do and what more will be stored on them.

  • by cyn1c77 (928549) on Friday January 17, 2014 @11:23PM (#45995811)

    Am I the only one who sees the word SCROTUM every time /. uses SCOTUS?

  • Re:Can we hope (Score:5, Interesting)

    by TheRealMindChild (743925) on Saturday January 18, 2014 @12:51AM (#45996265) Homepage Journal
    Just like most cops, they will just tell you "Give me your phone" and start looking through it. Since you didn't say "no", it is considered consent. I wish I was making this crap up
  • by EdIII (1114411) on Saturday January 18, 2014 @01:28AM (#45996415)

    Judges can be woken up, and if we have so much crime that we need to start hiring and paying judges to work grave yard shifts we have much bigger problems.

    At that point let's just put society to rest and create Judge Dredd.

    All of your examples pale in comparison to the protections afforded by judicial oversight. It's my RIGHT to have that judge woken up and asked if the logic and reasoning behind the violation of my privacy is warranted.

    Interesting how that word is used. An action can be "warranted". That's what a warrant means. Somebody designated by the citizens and trained to be impartial evaluated the situation and said the invasion of my privacy was warranted and in the best interests of society.

    With respect, I FUCKING WANT THAT.

    Don't take away my right to have a judge involved before the cops can even attempt to violate my rights, haul my ass off to jail for forced enemas, colonoscopies, beatings, jail rapes, etc.

    Let's keep due process dude. It's a really good idea.

  • by EdIII (1114411) on Saturday January 18, 2014 @01:35AM (#45996463)

    The cell phone is the new notepad or scrap of paper that the criminal is carrying.

    Maybe so. However, it also represents scraps of paper that are held in numerous other locations, and information that has nothing to do with the crime at hand.

    Nothing you said even for a microsecond excuses your desire to eliminate due process. Remember, I'm not arguing that you can't get it. Only that I want a judge to say that the getting of my data is warranted.

    You have the same back asswards logic that the NSA uses to justify mass surveillance. We *could* be ohh that much safer if we just got rid of due process and violated everyone's privacy in real time forever. All of the criminal text messages would be seen instantly!! We could even create a "precog" division for rapid response and be at the drug drop *before* the criminals get there.

    No dude. The risks and dangers to our society from such invasions of privacy are so much more dangerous than whatever security you think you gained with it.

    Once again, for the 2nd time in this post, if you really think you need it, just ask for a WARRANT.

    A WARRANT allows you get that information you want because the logic and reasoning you have for getting it is determined to be WARRANTED.

    You have not presented any logical reason whatsoever for getting rid of my due process rights.

  • Re:Seems obvious... (Score:4, Interesting)

    by Immerman (2627577) on Saturday January 18, 2014 @02:39AM (#45996675)

    Actually the rationale doesn't apply to closed containers either, or open ones for that matter, unless they happen to be on your person and capable of hiding a weapon - the Terry Pat is only to ensure you don't present an imminent threat to the officers during questioning, nothing else. If they even want you to empty your pockets they need either a warrant or your consent, or to actually arrest you, which changes the rules somewhat. Sadly they are unlikely to face any repercussions for ordering you to do things they are not actually authorized to require, and by complying with their orders the judge is likely to decide that you voluntarily consented. And of course unless you know the law well enough to be certain which orders you are required to comply with and which ones are "requests" you're likely to get yourself in trouble by refusing to obey.

  • by Anonymous Coward on Saturday January 18, 2014 @03:59AM (#45996865)

    As a late boomer I tend to agree (except for the "die" part!). I particularly hate the way boomers pushed down the driving, age of consent and other barriers for youth good times, yet now they have aged they seem to want to raise all those limits again! Boomers had the economic good times and have achieved great things but power tends to corrupt. The contraceptive pill is what ended the Boomer demographic "boom", and youth are now are a relatively small slice of Western society. Today's youth simply don't have the economic power than boomers had even as teens, which means that most of their culture does not have the revolutionary qualities of culture in the 1960-70s. In fact, today's teens are often frighteningly conservative. With postmodernism, even radical trends are often just rehash and are quickly turned to cash.

  • by Anonymous Coward on Saturday January 18, 2014 @06:49AM (#45997419)

    It's nice that you want 24-hour immediate access to a judge before every police action, but I want a pony. With respect, what makes you so important that your due process must be immediate, rather than speedy? If the on-call judge is busy with another call, then what? Does a burglar caught red-handed get to run away because the police have no warrant to arrest him?

    Nobody is asking for 24-hour immediate action before *every* police action - and if you want a pony you can go buy one. A judge is not needed to arrest a burglar "caught red-handed", if the police catch him in the action of burglarizing someone, they catch him climbing out of the window of someone's house with the proverbial bag of silverware, they have no need of a judge to arrest him.

    They *do* need to get a judge's signed warrant afterwards if they choose to break the door of his house in and search his house for other stolen goods - and what would the "urgency" be for doing that, that they would need to do it right then and there (say he's "caught red-handed" at 2am and arrested)? They can hold him in a jail cell for the night, get a warrant from a judge in the morning, and search his home (presuming the judge agrees with their request). They have no need/reason to search his cell phone unless, for some reason, they think/feel that whatever is on that cell phone is going to lead to something more urgent (imminent destruction of evidence, murder, kidnapping, etc), in which case they can wake a judge up - if it's not urgent then there is no reason to wake a judge up vs. just waiting a few hours until a judge is available. It puts the burden of *proving* that they have a reason to search for evidence on the police, which is where the burden is supposed to be.

    To do otherwise says that the police can just go to the local "bad neighborhood", walk door-to-door and knock on the door, when someone answers say "you are under arrest for drug dealing", slap the cuffs on them, and then "oh, now we have 'probable cause'" (when they had, and still have, no proof of any wrongdoing), walk into the house and start searching for something to 'make their case' against the person. The point of the warrant being, when it gets to court and the judge asks 'why did you suspect they were dealing drugs, did you observe people coming and going, did you receive a tip, did you send an undercover officer in who bought from them?' if the answer is "no, we just assumed that they lived in a bad neighborhood they must be doing something wrong", even if they found 20kg of cocaine in the house, it'll be thrown out of court - "poison fruit" because they had *no* reasonable suspicion of them doing anything criminal other than "where they lived".

    In your example of the burglar, if they catch him 'red handed' there is no reason for a warrant to arrest him if he was caught in process of doing the crime. If, however, they merely suspect that he is the burglar, they have not 'caught him in the act', then they need to prove it to a judge and get a warrant to be able to search his home for stolen goods as proof. Or, they can do real police work, watch his home and tail him going out and burglarizing someone, and arrest him in the act, if they can't get enough 'proof' to satisfy a judge for a warrant.

    Unless you believe that, despite being a decent law-abiding citizen yourself I'm sure, that the police should be able to corner you on the street for no reason, "arrest you" for any charge they feel like with no proof of anything, and then search your phone, car, home, shoot your dog in the process perhaps, maybe find that $1000 you have stashed for an emergency and 'confiscate' it, and then just say "oh well, we made a mistake" without ever having *any* reason to ever suspect you of any wrongdoing in the first place?

  • by Anonymous Coward on Saturday January 18, 2014 @07:58AM (#45997635)

    Unfortunately the seller came out of his apartment with the hot TV, not letting anyone inside to see all of the other stuff that he had listed on CL. Despite arresting him with stolen merchandise they could not get a warrant to search his apartment.

    Why the hell should the lone fact of arresting a person with one (or even multiple) item of stolen merchandise be reasonable cause to search that person's home?

    That's the same kind of logic that leads to civil asset forfeiture laws: you've been arrested on suspicion of breaking one law so we can assume you've probably violated a bunch of others until you prove to us that you didn't. Without sworn statements from anyone else claiming that the other advertised items were stolen, there was insufficient reason to violate the sanctity of the seller's home with a search.

Nobody's gonna believe that computers are intelligent until they start coming in late and lying about it.

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