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Cellphones Handhelds Privacy The Courts

What To Do If Police Try To Search Your Phone Without a Warrant 286

Posted by Soulskill
from the swallow-your-phone-when-they-approach-your-car dept.
blottsie writes: The Supreme Court ruled this week that it is illegal for police to search your phone without a warrant. But just because that's the new rule doesn't mean all 7.5 million law enforcement officers in the U.S. will abide by it. This guide, put together with the help of the EFF and ACLU, explains what to do if a police officer tries to search your phone without a warrant. Of course, that doesn't mean they don't have other ways of getting your data.
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What To Do If Police Try To Search Your Phone Without a Warrant

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  • by thaylin (555395) on Friday June 27, 2014 @01:11PM (#47334711)
    If they feel you may be about to wipe your phone for some reason the police an search it under exigent circumstances.
    • by DaHat (247651) on Friday June 27, 2014 @01:22PM (#47334795) Homepage

      Welcome to the fun world of anticipatory obstruction of justice.

      Yes... you can be charged & convicted of obstruction by way of destroying evidence that is not yet being sought but that you think might be.

      • by thaylin (555395)
        Then deleting of evidence of a crime would always be a crime then, because you should always expect someone to want to seek it at some point.
        • by sjames (1099)

          The problem is that if you delete something that is NOT evidence of a crime, you may still have problems. How do you prove that it was your grocery list from last week and NOT a todo list for robbing a bank?

          If you insist they prove it was, suddenly the (deleted) text file becomes evidence that you deleted. It's kind of like being arrested for resting arrest in the absence of any other reason you would be arrested.

        • This is why companies are always advised by counsel to have document destruction policies in place. Otherwise, yes, cleaning out your mailbox can retroactively become destruction of evidence.
  • Be polite (Score:5, Insightful)

    by gurps_npc (621217) on Friday June 27, 2014 @01:19PM (#47334767) Homepage
    Don't piss them off. Just say "I do not consent to this search. Repeatedly.
    • Re:Be polite (Score:5, Insightful)

      by Anonymous Coward on Friday June 27, 2014 @01:28PM (#47334857)

      Don't piss them off.

      Just say "I do not consent to this search. Repeatedly.

      That does piss them off.

      • by Anonymous Coward on Friday June 27, 2014 @01:53PM (#47335093)

        Why should they get angry if they're doing nothing wrong?

        Don't they have faith in the justice system?

      • Re:Be polite (Score:5, Insightful)

        by bobbied (2522392) on Friday June 27, 2014 @02:01PM (#47335171)

        As opposed to trying to physically stop them?

        The advise is sound. Do NOT consent to a search, make it clear you do not consent to as many people as possible. Even if you don't think you have anything to hide, do NOT consent to a search, ANY search... Ever... Period... You don't have to be obnoxious or disrespectful to make it clear you do not consent.

        If you think they are searching your phone, say something like "Officer, I didn't give anybody permission to search my phone and I object to you looking at it." If they ask you why, you only need to repeat "Officer, with all due respect, I do not give permission for any searches." If they ask you if you have anything to hide, keep saying the same thing.

        Further, I would recommend that you not answer any questions they may ask either. Once you have provided your identification, you are done answering questions with anything but "Respectfully officer, I am not required to answer your question. May I leave now?" If they say "No" or indicate that you may not leave, then you ask "Am I under arrest?" If they say you are not under arrest start the process at "May I leave now?" and keep going around the same bush until they let you leave or arrest you. Once they arrest you, SHUT UP. Say nothing but "I want my lawyer present before I will answer any questions." If they let you go, GO!

        Follow this process, even if you have nothing to hide. Where it may seem to be a pain, you literally have NOTHING to gain by consenting to searches or answering questions and doing so may cost you, so it makes no sense to be cooperative. If they come to your door, don't invite them in, just step outside and close your door behind you. Remember, no answers to their questions, and no permission for any searches. Go back inside once they let you go.

        • Re:Be polite (Score:5, Interesting)

          by spiritplumber (1944222) on Friday June 27, 2014 @02:37PM (#47335525) Homepage
          This is hard to do if you've taken a vow of hospitality. I've had a very surreal conversation about that with a cop one time. On one hand, I specifically said that he did not have my permission to enter my house, on the other, since he knocked on my door, he'd get a meal out of me. Fortunately the guy was Catholic and eventually understood what I was saying or we'd still be there looking at each other funny.
          • by bobbied (2522392)

            All I'm saying is that there is no legal benefit to letting them in your house... If there is a religious benefit for you that outweighs the worldly, do what you must....

            LOL

            • It was a bit odd is all. I didn't know American police officers aren't allowed to share apple juice and cookies with people while on duty. The guy said that if he ate any of my food and got sick afterward, I could go to jail.

              I don't know why any sane government would want to put me in jail in the first place, they'd have to spend a lot of money fixing holes in walls.

              • Re:Be polite (Score:5, Informative)

                by bobbied (2522392) on Friday June 27, 2014 @03:50PM (#47336171)

                Look at it from the police officer's perspective. There are a number of nutcases out there who would gladly harm anybody in uniform. A sane police officer realizes that it is not always obvious who these people are, so the best course of action is to be ready to react and not get into dangerous situations if you don't need to.

                This is why I do EVERYTHING I can to be nonthreatening when dealing with the police. I turn on lights at night, keep my hands in plain view, and if I have to go digging in my pockets or the glove compartment I first tell the officer what I'm going to do, turn to face away from him before I do it and make sure to show them my palms before I turn back. I want them to be as comfortable and feel as safe as I can because there job is risky enough without me causing them undue stress.

          • On one hand, I specifically said that he did not have my permission to enter my house, on the other, since he knocked on my door, he'd get a meal out of me.

            Make the meal (or order a pizza if you're not allowed to leave) and bring it to him on the porch?

            • That's basically what I did :) the guy at first thought I was either doing a horrible job of bribing him, or I was quoting some stoner movie or other, eventually I explained that it's a religious thing and he completely changed attitude / relaxed. Anyway, turns out that they're not allowed to have any homemade food, at least in this area.
        • Re: (Score:3, Interesting)

          by fustakrakich (1673220)

          I would say, do not step outside. It puts you on their turf. Talk through the screen door or a window.

          • Re:Be polite (Score:4, Interesting)

            by bobbied (2522392) on Friday June 27, 2014 @03:37PM (#47336047)

            Nope, step out and close the door, unless they tell you not to.

            The reason I'm saying this is because they can use their eyes, ears and noses. So they can look at what is visible behind you and listen to what's going on in the house behind you. If you go outside and close the door and step away from the house, they are not getting the "free" albeit limited search while they talk to you and that gives them less opportunity to "invent" a reason to search.

            I'd also figure that the police would be less threatened by stepping away from the house because you are putting the "unknowns" of what's inside further away from them. On that note, you want to make sure you make no threatening looking moves. That means you keep your hands visible and sit down if possible, speak respectfully and stay calm.

      • Re:Be polite (Score:5, Insightful)

        by Maxo-Texas (864189) on Friday June 27, 2014 @02:39PM (#47335547)

        Amazingly- lots of videos on Youtube show it doesn't piss them off as much as it flusters them. I feel uncomfortable watching the videos but the police always back down. Sometimes they threaten to arrest the person but you have to have a specific charge to arrest someone. Which leads to the other respectful statement made in the videos.

        "Am I under arrest?"

        That's a legal phrase too- because if you are not under arrest, you are free to go after a fairly brief period. They have to arrest you to hold you.

        It's very easy to for them to mess you up into trouble- but if you stick to certain specific stock phrases and obey their orders (that was another one-- "Are you ordering me to do this?") then it's clear from the videos that while they have a significant advantage in these situations- they are well aware of their own legal boundaries. Once you show you are aware of their legal boundaries they back off.

    • Re:Be polite (Score:5, Informative)

      by mindcandy (1252124) on Friday June 27, 2014 @01:54PM (#47335113)
      Just say "I do not consent to this search
      This .. and remember kids (and cops) .. that whole "digital breadcrumb" thing cuts both ways.

      Even using an "imager" on a device (usually) creates a ./messages log entry which is handily timestamped with ntp sync'd clock accuracy.
  • The actual Guides (Score:5, Informative)

    by jittles (1613415) on Friday June 27, 2014 @01:19PM (#47334771)
    Since the summary links you to a stupid news article and not the guides themselves, here is the ACLU Guide [aclu.org] and EFF Guide [eff.org]s here.
    • Re:The actual Guides (Score:5, Informative)

      by mpoulton (689851) on Friday June 27, 2014 @02:03PM (#47335187)

      Since the summary links you to a stupid news article and not the guides themselves, here is the ACLU Guide [aclu.org] and EFF Guide [eff.org]s here.

      The EFF guide you linked has not been updated yet to reflect the Riley decision. Some of those answers need to be changed because they are incorrect now. The ACLU "Know Your Rights" manual does not appear to have been updated either, but it simply doesn't address the issue of cell phone searches incident to arrest at all.

      • by jittles (1613415)

        Since the summary links you to a stupid news article and not the guides themselves, here is the ACLU Guide [aclu.org] and EFF Guide [eff.org]s here.

        The EFF guide you linked has not been updated yet to reflect the Riley decision. Some of those answers need to be changed because they are incorrect now. The ACLU "Know Your Rights" manual does not appear to have been updated either, but it simply doesn't address the issue of cell phone searches incident to arrest at all.

        You are correct - they have not been updated. Why are they even mentioned in the summary and the article? Either way, I think the sources themselves are more valuable than the silly article.

  • by synapse7 (1075571) on Friday June 27, 2014 @01:19PM (#47334777)

    Have phone encrypted, and wipe phone from the bootloader?

  • The US police are infamously variable. In some towns they are a model of how the police should be, respectful of the law and all citizens until proven guilty. The next town over they are little more than a legal mafia, happily resorting to intimidation and extortion to extract fines and reacting to any challenge to their authority with a campaign of persecution.

    If you're in the latter, you're basically screwed. If you don't hand over the password, the officer will decide he smells a hint of pot in your car

    • Re: (Score:3, Insightful)

      Judge: "And why, exactly, did you search this man's phone?"

      Policeman: "Well, we found this dirty phone in an extended search on the ground a few hundred feet where we arrested Mr. Jones. We searched it to learn who it belonged to."

      Judge: "And where did you find the incriminating information?"

      Policeman: "Well, we turned the phone over to our investigative crimes unit. They ran the 'strings' command on all the information on the phone and gave us a printout. When we looked through the printout, we found there

  • Sad but true, if police want to do something illegal, and you argue with them, they *will* do it anyway, and you *will* be in further trouble for attempting to resist.

    On the plus side, it seems like that could actually *help* you, seeing as how it would be inadmissible in court, so if you were on trial and their evidence was found that way, great for you! (I am not a lawyer. All my knowledge of law comes from watching fictional tv and reading fictional books. Ask a real lawyer if what I said is actually tru

    • Re:Let them (Score:5, Informative)

      by ai4px (1244212) on Friday June 27, 2014 @01:42PM (#47334985)
      Don't resist arrest? Don't plan on it, but that won't stop the cop from "narrating" what he wants others to believe what is happening. Case in point, cop pulls over a guy and walks up to the car knowing he's being recorded by his dashcam and has on a wireless mic. You hear the cop say "stop reaching for my gun" and see him lean in the car window. It looks like the guy has tried to take the cop's gun. The truth is that there is a 2nd cop car with a dash cam recording from an angle that allows you to see the driver's hands clearly on the steering wheel, even as the cop leans in his car to unbuckle his seat belt. The cop drags him out the car and throws him on the ground. The guy tries to break his fall and the cop starts shouting "stop resisting". This really happened... google Marcus Jeter New Jersey. The cops and the DA conspired to conceal the 2nd dashcam that showed the driver's hands /not/ reaching for the cops gun.
    • by bobbied (2522392)

      Sad but true, if police want to do something illegal, and you argue with them, they *will* do it anyway, and you *will* be in further trouble for attempting to resist.

      That's why you DON'T resist. You respectfully make it clear that you did not consent to a search of your phone. If they ask "May I look at your phone?" you say "No, not without a warrant", if they do it anyway, you might want to say "I didn't give you permission to look at my phone, please put it down" Keep trying until they tell you to shut up.

      If the police insist on doing something illegal, like searching your phone without a warrant or permission, it's going to be a matter for the courts to figure

  • by Anonymous Coward

    Google: police cell phone extraction device

    There were a bunch of stories about gadgets that could scoop up everything from your cell in about 2 seconds.

    So I wonder if those devices will still be used - at the side of the road.

  • Lock Screen (Score:3, Interesting)

    by smurd (48976) * on Friday June 27, 2014 @01:43PM (#47334997)
    Ok, so who wants to be the first one to write an Andriod lock screen that states:
    • I do not consent to a search of this device.
    • This is illegal as per SCOTUS Riley v. United States.
    • Any search will be prosecuted criminally or civilly.
    • Bonus points if it is voice activated.

      *Normal Phone lock screen.*
      Officer: "Give me that phone so I can see what's on it!"
      You: "I do not consent to a search of this device."
      *Non consent lock screen enabled*

    • A lockscreen wallpaper would do just fine.
  • by CanHasDIY (1672858) on Friday June 27, 2014 @01:45PM (#47335033) Homepage Journal

    The article has some good advice, and what I would consider some bad advice:

    "Lock your phone"

    - GOOD ADVICE! A simple passcode is your first line of defense against any physical intrusion, just like the lock on your front door.

    "Repeat 'I do not consent to this search'"

    - GOOD ADVICE! Not only does it establish that you deny consent, it shows the cop that you know (at least some of) your rights, which will get most of them to think twice before doing anything that might violate your rights (especially if you're taping the encounter).

    Don't get physical/let them do as they please, then lawyer up."

    I consider that bad advice, because it discourages people from exercising their right to defend themselves against unlawful arrest, a right that has been repeatedly verified and upheld in court. [constitution.org]

    Of course, as with any exercising any right, you do so at your own peril.

    • The problem is you wont remember those rights when you wake up from the coma in jail with a TBI and associated memory/function loss. To be then railroaded for resisting arrest, assaulting a police officer and anything else they can think of.

      • I figured the problem was that after they murder you for standing up for yourself, the media will do everything possible to demonize you as a radical extremist, and the cycle of fascism will renew itself.

  • by ptudor (22537) on Friday June 27, 2014 @01:51PM (#47335075) Homepage Journal
    Most people involved in a pre-textual motor vehicle stop and issued a warning for a trivial non-offense won't know to say the magic words that begin their legal defense: "Am I free to go? Why am I being detained?" and when the polite officer says, "Well, I'm sure you've got nothing to hide, let me search your vehicle, and no matter what I'll make sure you're on your way quickly," many quickly hope compliance is their best option in the short-term.

    So they say, "Yeah, go ahead," instead of the alternative, "I do not consent to search and invoke all protections afforded me by the Constitution; while I am cooperating within those constraints, please advise me promptly when I am free to go."

    You'll get searched anyway, whether it's your phone or your car. You might get arrested anyway. But having invoked your rights instead of freely waiving your rights gives the defendant ample opportunity to assert their innocence in court without having already accidentally proven their guilt without the benefit of counsel.

    I expect most people, despite the Supreme Court ruling, will find their phones searched anyway; consider stop-and-frisk in New York City. Please set a passcode on your device, preferably alphanumeric instead of a simple PIN, and avoid interacting with law enforcement, they have better things to do than read a neckbeard hacker's text messages to his mom about picking up more Mountain Dew at the store.

    (Nevermind Border Patrol checkpoints in the US or Customs/Immigration interviews...)

    (IANAL.)
  • Openly film the cops with one camera. Have the other one set up in an inconspicuous location, where it can see them them beating the crap out of you and smashing the first camera. Do not inform anyone about the second camera until its footage is safely on YouTube.

  • What I say (Score:5, Informative)

    by Charliemopps (1157495) on Friday June 27, 2014 @02:05PM (#47335201)

    This has worked very well for me in the past:

    "My lawyer has advised me that rights are like muscles. If they are not exercised, they become weak. Therefor I do not and cannot consent to this search."

    It conveys, very directly:
    your refusal of the search request
    you are a constitution, and rights advocate... meaning you will a big headache for the cop if he continues
    you have a lawyer that's also into that sort of thing and would love to sue the department

    You should refuse EVERY search. EVERY time. With absolutely no exceptions.
    The majority of arrests start with a consensual search by police of someone that legitimately thought they had nothing to hide. Everything is illegal. If a cop searches your home and he wants you to go to jail, you're going to jail. It's as simple as that.

    People get into these situations where someone backs into their car in a parking lot and the cop that arrives casually asks "Mind if I check your car for open alcohol?" and they think "LOL that's funny! Of course I don't have that." But the cop isn't just looking for alcohol is he? He starts lifting your floor mats... does he think there's a beer bottle under there? In once instance a man bought a car from the local police impound. A few days later he got pulled over, consented to a search and low and behold the car had a secret compartment for smuggling drugs. They arrested him and he spent a month in jail before they finally realized it had the drugs when it went into impound. ALWAYS refuse search requests. ALWAYS.

    • Re: (Score:2, Informative)

      by Pro923 (1447307)
      Also i should point out that I completely agree with you. I was arrested when I let the police search my car and they found a sandwich bag in which I kept a 'stash' of my medication in. I have grade 4 arthritis in my ankle and it can really get bad at times. I always tried (past tense) to keep a few in my car because I never wanted to get caught in the situation where I needed them and didn't have them. These were vicoden-ibuprofen, and I had a regular prescription for them. I ended up getting charged
      • Also i should point out that I completely agree with you. I was arrested when I let the police search my car and they found a sandwich bag in which I kept a 'stash' of my medication in. I have grade 4 arthritis in my ankle and it can really get bad at times. I always tried (past tense) to keep a few in my car because I never wanted to get caught in the situation where I needed them and didn't have them. These were vicoden-ibuprofen, and I had a regular prescription for them. I ended up getting charged with posession and OUI. The posession was dropped when I came back and showed the prescription, the OUI was continued without a finding - but what they don't tell you is that you still have to go through the RMV's version of an OUI, which is not pleasant at all - especially seeing as I got one that I deserved some 22 years ago when I was about 21. So this one counted as my second, and required an "interlock device" be installed in my car for 2 years. I just can not describe to you how awful this device is. Food sets it off, and every time it goes off, you have to pay 50 bucks.

        Right. You should always have your prescriptions in a bottle. The easiest way is to keep the paper prescription in your car and the bottle at home. If you ask for your pills to be split into 2 bottles at the pharmacy, they'll do that for you. Then you can keep one in the car. Don't consent to tests, don't answer questions, at all.

        Police: "Where are you headed this evening"
        You: "Is this about that taillight? The Autozone guys replaced that. Do you think I can get my money back? You pay good money and they do

    • I go by "be polite, be efficient, have a plan to kiss everyone you meet". With police, that means sound cooperative, but make it clear you don't really want to share information about anything unless you legally have to. If I'm asked why, my answer is that it's what my patent lawyer told me American custom is. If you do want to talk to the guy, remember to always talk to the person rather than the hat. If you're asked a question, answer it then ask something irrelevant/friendly right after. You want to int
  • by DarthVain (724186) on Friday June 27, 2014 @02:21PM (#47335375)

    The first thing you should do is avoid eye contact, slowly back away, making calm reassuring noises. You should also keep your arms wide; it makes you look bigger and less like prey. Finally, you should lie on the ground, and play dead. They will quickly lose interest and move on. Do not run, as it will trigger their hunter/prey instincts.

    If however they start to eat you, you should start to fight back vigorously.

    Or if you are really worried about it, encrypt your phone and lock it...

  • I didn't RTFA, but wouldn't the tricky/slimy answer be "let them search it, so then all of the evidence gets thrown out"?

  • My phone is always listening for voice commands, which is great for things like making calls, sending messages, starting navigation etc., but I want a new command specifically for situations like this: "OK Google Now: Lock and Record". It should lock my phone and start a continuous video and audio recording which is streamed to a server somewhere. Even better if it's a separate hotword so I don't have to say "OK Google Now" first to warn the officer I'm about to screw with his plans to screw with me.

    If I can activate it by voice, it won't matter whether the phone is locked when it's taken from my pocket. And with the recording, I'll have proof that I did not consent to the search. Streaming will ensure that proof can't be accidentally destroyed by, say, dropping my phone just before a cruiser happens to roll past.

  • Despite the strong privacy protections established in the court's Riley decision, police still have the right to search your phone without a warrant in a few certain scenarios known as âoeexigent circumstances.â This includes, for example, the abduction of a child, when police suspect a person is in imminent harm, or âoesome imminent threat of evidence destruction,â says Fakhoury. âoeSo its not like a carte blanche rule.â In those instances, there's simply not much you can do.

    Y

  • You don't know what the police know.

    In other words, the police might have perfectly justifiable reasons to take your phone--and you don't know those reasons.

    ALWAYS take that into account when making your decisions.

  • There are 7.5 million law enforcement officers for 300 million Americans? That's like what, one for every forty Americans, including children? Surely that number is a bit off, isn't it?

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