SCOTUS To Weigh Smartphone Searches By Police 201
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."
Can we hope (Score:5, Insightful)
Can we hope for the proper decision (that police need a warrant)?
Re:Can we hope (Score:5, Insightful)
We can hope for a proper decision of you can crack the encryption if you can after getting a warrant and the owner has no burden to help you nor can refusal be held against them.
Re:Can we hope (Score:5, Interesting)
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That's why you have to be specific. "I do not consent to any search. Am I free to leave?"
Good luck with asserting your rights to police officers in the US. Here's an example. All they need is probable cause> [wikipedia.org] which they can create. Of course that's if you're not part of the 66% of Americans living in the constitution free zone [aclu.org]. If you're part of the 66%, then police don't even need probable cause as you aren't being protected by the fourth amendment.
I'd love to hear the SCOTUS side with the people on this, but I fear it would only be symbolic.
Re:Can we hope (Score:4, Insightful)
No. And stop resisting arrest immediately.
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You can hope for unicorns too, but it wont happen.
We will lose yet another piece of our rights here. And it will spawn even more encryption techniques..
Scalia says the Constitution (Score:5, Funny)
Doesn't mention phones, so there is no right to them.
In fact, he's pretty sure they're witchcraft.
Seems obvious... (Score:3)
But with this bunch of idiots on SCOTUS you never know.
Police should be free to search the physical device, for example, remove the battery cover, take it out of the case, etc, but not able to search the data contained within the device or its memory cards without a warrant.
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Actually even searching the physical device should require a warrant - beyond a "Terry Pat" that's (supposed to be) targeted *exclusively* at detecting weapons, US police are required to get a warrant or your permission before searching you or your home/car/etc, though of course a little intimidation and/or selective hearing can usually get them that permission pretty easily. Well, plus the fact that a while back the rules were changed such that *suspicion* of drug possession was almost as good as a warran
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Well that's just it, they are already allowed to search you if they have the suspicion of finding drugs. The question then becomes, can they then turn on your phone and look thru the contact list or call logs? Search the physical phone, yes. Search the data on the phone, no. If they take possession of the phone (which they most likely will if they believe something of value is on it) it's not like the phone is going to self-destruct, so they can wait for warrant if their case is strong enough. And if their
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Incorrect. They need probable cause, not mere suspicion.
Mine can self-destruct. (I haven't actually -installed- a dead man's switch on it, but it's pretty trivial to do, just as it is
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>Incorrect. They need probable cause, not mere suspicion.
Can you cite a source for that claim? Because I'm fairly certain I've heard "suspicion of possession" as the magic words from several sources. Probable cause is what you need for a warrant.
As for a kill switch, it doesn't do you much good if their first action was to clone the drive, which I've heard is the standard process for PCs at least for exactly that reason. If some other computer is analyzing the data it doesn't much matter what self-dest
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Congratulations! You've won the Pedantic asshole of the Day award! Please call 1-800-EAT-SHIT and ask for someone who cares! Have your credit card ready!
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The problem is that many judges don't seem to have a grasp of simple logic. In the situation you describe, some judges would think: "In order to search for weapons, cops can search closed containers. Because cops can search closed containers, they can search anything else that might be closed, like a cellphone". Of course, this type of thinking c
Re:Seems obvious... (Score:4, Interesting)
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.
Lock code.. (Score:2)
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If the phone is locked up with a PIN they can't force you to divulge that information without a warrant, correct?
the world has changed in the last 12 years that you've had your head buried in the sand... nowadays police don't need warrants for anything (at most they might follow up the paperwork later with back dated warrants etc).
possession is now 100% of the law, so if the police sieze your phone, they can do whatever they want with it and there is nothing you can do about that. if the phone is locked, they either get what they want directly from the carrier or they threaten you with the thought of enjoying cuban cu
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Again we have that lovely "you have no right to privacy for information information in possession of a third party", in this case the third party being your carrier.
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the world has changed in the last 12 years that you've had your head buried in the sand... nowadays police don't need warrants for anything
They do indeed still need a warrant. It's the law. If you keep everything encrypted you are protected from any law officer under the delusion that they don't need a warrant.
Let's face it, law officers aren't the brightest people. In fact you are automatically disqualified from being in law enforecement if your IQ is high enough.
tldr; use encryption, protect yourself from dumbfucks.
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the world has changed in the last 12 years that you've had your head buried in the sand... nowadays police don't need warrants for anything
I thought GP was going to cite what I was thinking about in that quote.
They do indeed still need a warrant. It's the law. If you keep everything encrypted you are protected from any law officer under the delusion that they don't need a warrant.
Let's face it, law officers aren't the brightest people. In fact you are automatically disqualified from being in law enforecement if your IQ is high enough.
tldr; use encryption, protect yourself from dumbfucks.
You didn't either. What I was looking for is what I've heard about forensic tools that are now available to any cop, if I recall correctly, where they just plug in your phone and sluuuuurp! Done!
So you don't even need to unlock it, regardless of whether it's iOS or Android based. Since the US government has agreements with all those companies and there are backdoors in everything, the war is lost if the device leaves your hands, being it
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You didn't either. What I was looking for is what I've heard about forensic tools that are now available to any cop, if I recall correctly, where they just plug in your phone and sluuuuurp! Done!
What you heard is wrong. There is a reason Edward Snowden publicly disclosed his data cache encrypted with AES-256; the NSA can't touch it. You can "slurp" up as much encrypted data as you want but if it takes you until the heat death of the universe to decrypt it, it's not of much use.
Because given misunderstandings, the only good guy when it comes to your personal data is your own self.
Which is why you take the responsibility and encrypt it yourself.
Need good aftermarket encryption (Score:4, Insightful)
A pin or pattern / gesture lock is useless if the cops have the phone. They DO have tools to render such trivial things useless. They DO use those tools. I have seen the little box with the multitude of connectors being attached to a phone, and then the phone is unlocked, data dumped, and sorted through. Encryption, strong, non manufacturer based encryption, is the only thing close to safe.
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A pin or pattern / gesture lock is useless if the cops have the phone. They DO have tools to render such trivial things useless. They DO use those tools. I have seen the little box with the multitude of connectors being attached to a phone, and then the phone is unlocked, data dumped, and sorted through. Encryption, strong, non manufacturer based encryption, is the only thing close to safe.
Without hardware support you're screwed anyway because absolutely nobody wants to input a 128+ bit passphrase on their cell phone, you need some kind of trusted, tamper proof chip that'll nuke the encryption key if you enter the wrong PIN more than say 4-10 times.
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They DO use those tools. I have seen the little box with the multitude of connectors being attached to a phone
What do you think of a plug that fits into the lightning port, locks into place using a magnetic lock, and prevents any other cable from being inserted?
Attempt to force removal, should trigger release of corrosive materials sufficient to immediately destroy the connector, and possibly leak into the phone, and render the unit inoperable
Papers and EFFECTS (Score:4, Insightful)
Re:Papers and EFFECTS (Score:4, Insightful)
Not to mention that any honest reading of the Constitution would acknowledge that the data on a smartphone (or other computer) is the modern equivalent of one's "papers".
Arrested criminal suspects.... (Score:2)
Continuing to refer to it as a phone is a mistake (Score:2, Interesting)
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.
Am I the only one...? (Score:3, Interesting)
Am I the only one who sees the word SCROTUM every time /. uses SCOTUS?
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Yes. Have you been tea-bagging Scalia again?
(sorry, couldn't resist. ;-)
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Well, they are wedged between a dick and an asshole, but then again, I doubt they have balls.
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Am I the only one who sees the word SCROTUM every time /. uses SCOTUS?
The acronym should be based on:
SupremeCouRtOfTheUnitedstatesofaMerica.
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I'm not in the US so that's probably why.
It gets mixed up in my head with the TSA search procedures every time I think of the USA and why I'm not planning to go there for a bit.
I got a hint for the USSC (Score:2)
That it actually got all the way up to the USSC is appalling. It should have been vigorously quashed at the district level and affirmed by the appellate and that be the end of it.
Sure, allow it (Score:2)
Re:Sure, allow it (Score:4, Insightful)
If you want to allow the police to look through your phone without a warrant, you're more than welcome to. I would appreciate it if you'd leave the rest of us out it.
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Some people don't encrypt their phones, but the police should still need a warrant to search them. The police don't get to search your house just because you forgot to lock your doors.
Should smartphone content really be "evidence?" (Score:4, Insightful)
In the days of landlines, *everyone* had multiple people using the same phone. I still do that to this day with my smartphone. Friends, siblings, etc. use my phone all the time, and why shouldn't they? You can't assume anything on my smartphone was done by me alone. Same with my PC. Back before cell phones, if someone ran out of gas and walked to the nearest house to borrow their phone, it wasn't unusual at all. I was also always happy to show off my Commodore 64 and Amiga to all my friends or relatives. Why are we assumed not to have this privilege anymore? At what point did we *become* our phone or PC? I'm not a phone number or IP address, I'm a human being. Don't I have the right to be courteous enough to let others use my equipment anymore?
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It happened when the phone networks switched from data-over-voice channels (modems screeching over telephone lines) to voice-over-data channels (digital telephone networks). Once wireless telephone networks became digital, it was easier taking a TCP/IP stack and porting it over to the wireless modem that it was to write something completely new. But TCP/IP required an IP address, which in turn invoked the tradition of every IP address having a registered system administrator and owner.
Stick to the purpose of the search (Score:2)
The reason why police can do a simple search of a detained person, and look inside containers, is to ensure the safety of the officer. It is a light search to ensure that the detained person is not armed. Until I can install a weapon on my cell phone, looking inside it as if it were a 'container', is obviously abuse.
Re:They should allow it (Score:5, Insightful)
If there is enough evidence for arrest, then there is enough evidence TO GET A GODDAMN WARRANT. Does the Fourth Amendment mean nothing to ANYONE anymore?
Re:They should allow it (Score:5, Insightful)
I think it largely has to do with ignorance.
The poster holds a rather unsophisticated view that allows them to see the police's reasonable and justified need for access to that information as something correct and desirable.
The 4th doesn't mean anything to the poster since they don't understand the basics taught to people in Civic's class. That being, the ostensibly simple concept of having a member of the Judiciary act as a check and balance against the needs of the Executive.
Nobody is saying that the police should not have access to that data. They absolutely should and I can totally understand that it would be very useful to solving crimes. What the proponents completely miss is the understanding of what a warrant is .
That's the real problem. How many people understand what the heck a warrant even is anymore?
Re:They should allow it (Score:5, Funny)
Only like the greatest hairband EVAR! [wikipedia.org]
....oh.....I may have made your case for you.....
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Honest question - do they need a warrant to open your wallet and look inside it if you had it on you at time of arrest?
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Does the Fourth Amendment mean nothing to ANYONE anymore?
I believe it means "annoying obstacle" in Fascist.
Younger Generations (Score:5, Insightful)
Younger generations don't seem to care? It seems to me like younger generations are the ONLY ones that care. The older generations are the ones that got us here.
Don't put shit on the youth. They're active. They care. OUR apathy and ignorance got us here.
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Some day younger generations may learn why we care, but I hope not for their sake.
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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'
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I blame most, if not all, of our problems on baby boomers. Spoiled rotten little fuckin' brats. They had it great, and then they ruined it for the rest of us, trying to keep things great for themselves, because, of course, it's all about them. I wish they'd all just die already.
You're 17 years old and just graduated high school. You turn 18 two weeks later, you got a new job lined up paying good money, and can't wait to go out drinking with your older buddies after your birthday.
Then you realize you're not in college, and your draft card shows up in the mail the next day.
If you made it back home alive from the Vietnam War and lucky enough to not be mentally and/or physically fucked, you were still chastised, hated, and even spit upon by your fellow Americans.
Fuck You for thinkin
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I blame most, if not all, of our problems on baby boomers. Spoiled rotten little fuckin' brats. They had it great, and then they ruined it for the rest of us, trying to keep things great for themselves, because, of course, it's all about them. I wish they'd all just die already.
I blame most, if not all, of our problems on Millennials. Spoiled rotten little fuckin' brats. They demand to have everything for free, and then they ruined it for the rest of us with invasions of privacy, trying to keep things free for themselves, because, of course, it's all about them. I wish they'd all just pay already.
If anything, this proves that each generation is nothing more than human, and each has it's own grand fallacies. I seem to recall a Great Depression somewhere in our history boo...woah
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Sorry, it's not that simple. It seems to me that most don't care, regardless of generation. And, there are those in all generations that do care.
Our apathy and ignorance got us here, just as the younger generations' apathy and ignorance will take us further. I truly hope I'll eventually be proven wrong.
Re:Fourth Amendment ? (Score:5, Insightful)
I'd say more like 1 in 100 would be able to name the first 10 amendments.
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>, especially the 3rd is so irrelevant
Not true. There is a civil case ini the northeast where somebody is suing the police on 3rd amendment grounds. The police wanted to use this guys house as a part of some police operation. He refused but the cops intruded anyway and the guy got arrested.
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You forget that mobile gaming allows chat modes. You don't even need to send a SMS message or a phone call. So service provider logs, or even port sessions log won't help. You'd have to get cooperation from the application vendor assuming they actually maintained logs.
Re:They should allow it (Score:5, Insightful)
Seriously? How on earth does anything you just said magically erase the US Constitution?
That smartphone represents, just as you said, access to huge amounts of information about the suspect. As well as information about innocent third parties that quite possibly had nothing to do with the crime.
You're supporting the idea of fishing expeditions into a person's digital space.
Arrest does not imply guilt. A member of the Judiciary should always be consulted regarding, and allowed to limit, the scope of any search of a person's effects and papers.
So, NO. There is not always enough evidence to justify the full and complete invasion of privacy of a citizen that is innocent until being proved guilty. If there really is a justifiable reason to invade that privacy than the police can convince a judge to do it.
Don't be a douchenozzle that enables their asshattery please.
There is never an acceptable reason to violate due process and PERFORM ANY ACTION WITHOUT A WARRANT .
Warrant, warrant, warrant, W A R R A N T!
It's a well conceived check and balance against tyranny ever present in a law enforcement organization. Don't give up something so valuable to the citizens over such stupid reasons.
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The cell phone is the new notepad or scrap of paper that the criminal is carrying.
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Ah, decided to go with "douchenozzle" anyway, I see.
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Again, if there is reason to believe someone is a drug courier (because, say, you find drugs on him) it should be fairly trivial to get a warrant for the phone. What's the problem with that?
Re:They should allow it (Score:5, Insightful)
The key word there is "nearly." We have a name for the exceptions: they're called "civil rights violations!"
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http://www.miamiherald.com/2013/11/21/3769823/in-miami-gardens-store-video-catches.html [miamiherald.com]
An arrest is supposed to mean an officer had probable cause. In practice it means nothing whatever.
Requiring judicial review preserves a little privacy for victims of DWB and harassment arrests.
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So why not skip all the bullcrud and use common sense and let cops do their job.
Because "all the bullcrud" is there to help keep the cops from abusing their power! By getting a warrant, they are (at least in theory) affirming that they have probable cause to conduct a search. If we were to let your "common sense" take over, then the cops could search people for whatever reason they felt like, probable cause be damned. Now, the vast majority of them may in fact be sane, rational, and fair with when they conduct searches without a warrant. However, there are plenty of crooked cops who wi
Re:They should allow it (Score:5, Insightful)
So why not skip all the bullcrud and use common sense and let cops do their job.
That "bullcrud" is called Due Process and the Constitution of the United States of America.
"Nearly 100%" doesn't cut it. You're being a douchenozzle right now.
If it was your freedom at risk, why would you elect to remove the Judiciary oversight from your interaction with law enforcement?
Another question:
You may feel that way, but why would you deny me my Constitutional right to privacy in my effects and papers?
The position you hold is not reasonable, or rational, and basically amounts to "due process and oversight is so hard. I have to like convince a judge that my logic is correct".
In other words, you strongly disagree with the idea of peer review.
Those checks and balances were created by the founding fathers for a reason. Not just to fuck with law enforcement and make their lives harder.
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What these people arguing for doing away with the checks and balances don't seem to remember:
Anything can be declared illegal, at any time; all it takes is a little Moral Panic judiciously aimed at legislators. YOUR presently-legal activity could be outlawed, and you too could become subject to random search and seizure. How do you feel about that warrant now, eh?
Don't think so? look at the history of marijuana, formerly a perfectly legal thing to grow and possess.
This applies equally to court decisions and
Re:They should allow it (Score:4, Insightful)
Yes, let's let the cops do their job. That includes GETTING A GOD-DAMNED WARRANT.
The rest of your commentary is so laughably idiotic that I hope no one wastes any time responding to it.
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You seem to agree with everything I said but want the hassle of the warrant in situations that you agree are nearly 100% likely to get one. So why not skip all the bullcrud and use common sense and let cops do their job.
It's called 'Due Process' and is the only thing keeping you from arbitralily being swept up and jailed when they 'round up the usual suspects'.
Sure traffic cops and beat cops catch a lot of flak, but no cop is looking to search your cellphone for speeding or littering. So I have to be a little curious to know what oddball corner case that you have in mind that would involve an arrest, but wouldn't be a serious crime and wouldn't be a situation where the police were likely to get a warrant --- and whatever creative corner-case you have in mind can't be more than a few percent of those types of arrests. An arrest means enough evidence to be strongly considered to being charged with a crime, not just casually annoying some guy who a cop wrote a parking ticket.
You're assuming every cop is a Boy Scout and wouldn't think of tainting evidence. May I remind you of the most famous instance regarding manufactured/manipulated evidence, a double homicide in Brentwood? The jury was convinced that he did it, but since evidence was tainted to the point where they couldn't even prove what day it was, the jury was forced to aquit bas
Re:They should allow it (Score:4, Insightful)
Sadly, an arrest is not an objective process. It only means that a cop thought it would be a good idea to arrest someone, that's basically all it means. Now, of course in most cases, I'd hope, it means that the cop has some very good reason to believe the person he arrested broke a law.
But what keeps a crooked cop from arresting someone he thought has slept with his wife to get a hold of that person's cellphone to see whether he can find some pictures that prove it?
Re:They should allow it (Score:4, Interesting)
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.
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Don't take away my right to have a judge involved before the cops can even attempt to violate my rights
That's why there's arrest warrants. The judge is involved beforehand.
Of course, you can be detained or arrested without a warrant, if the police officer has probable cause to believe you committed a crime. In that case, you can challenge the arrest right off the bat. Then a judge is involved, and if the judge disagrees with the police, everything they have is excluded and the police department is ripe for a wrongful arrest lawsuit. that's real due process. You get a chance to defend yourself against accusat
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The police can detain you if they believe they have enough evidence to do so. However, the 4th requires that to search you, or seize your property, they need a warrant. So, if required, you, and they, should wait for one while they supply said evidence to the judge.
Yes, I know they just do whatever the fuck they want, but they are wrong, and the 4th spells out exactly how they are wrong.
Until or unless the 4th is amended, we're talking about government out of control.
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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
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From the confused US reception of the Stallone movie of that name there seemed to be a lot of people that thought the 2000AD Fascist society that Dredd was a part of was a good thing :(
There's a very strong swing towards authoritarianism lately from people that seem to see the US Constitution as just a piece of paper. If it gets in the way of those they think should be King they ignore it (eg. the response to Snowden showed many think thei
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Time constraints, for one. Judges sleep, while the contacts can schedule crimes any time they want.
Lost opportunity, for two. Criminals can easily just disperse and hide if a scheduled check-in is missed.
It's unnecessary, for three. The Fourth Amendment protects against unreasonable searches, but if there's a "reason to believe [whatever]", it's reasonable by definition. That reason may be debated in court later, of course, such as if the "drugs" turn out to be something else, but working with the facts known at the time, the search would be allowed.
No. No. NO. An arrest after a search without a warrant can be overturned by any defense attorney worth their salt. If following due process inconveniences the cops and the legal establishment TOO FUCKING BAD, it's not there for them, it's there for the common citizen.
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Try again [lawcomic.net].
Let me explain to you what a warrant is, it's a check against unreasonable searches.
A search incident to a lawful arrest is not "unreasonable".
READ the 4th, will you? (Score:3)
Actually, the 4th defines what is reasonable WRT search and seizure, and that is: probable cause, supported by oath or affirmation, describing the place(s) to be searched and the thing(s) to be searched for, which stipulations, when met, are the minimum standard for issuance of a warrant, and the WARRANT is what says, finally, that it's ok to search and/or sieze, and what, and where. Until that warrant is issued pursuant to the above conditions, yo
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Try again [lawcomic.net].
Let me explain to you what a warrant is, it's a check against unreasonable searches.
A search incident to a lawful arrest is not "unreasonable".
A 'fishing expedition' and search prior to an arrest, without warrant, IS unreasonable.
Oblig Freefall quote - Re:Fishing expedition (Score:2)
'fishing expedition' and search prior to an arrest, without warrant, IS unreasonable.
Statistics are a poor excuse to stop anyone. [purrsia.com]
Re:They should allow it (Score:5, Interesting)
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.
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If there is enough evidence for arrest, there is enough evidence to see what recent contact information, phone calls and text messages are on a cell phone.
No...... because no evidence is required to arrest or detain someone, only suspicion of "substantial chance" or "fair probability" that there might be a specific criminal activity, the person is involved with. The phone might contain personal information, or information that could be incriminating in a manner unrelated to the basis for searching
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If you have cause to arrest me, it should be fairly trivial to get a warrant to search my phone, shouldn't it? Or are we learning from the Stalinist times of "arrest him, then keep poking through his private life 'til we find a reason for it"?
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Your phone may include passwords to online or home storage that contains evidence of crimes unrelated to the one for which you were stopped. It may also contain information on activity that is legal but highly embarrassing. The police do sometimes release personal information to the press on people who have not been convicted of a crime.
The phone may also contain information on legal political or religious beliefs that would be prejudicial to someones trial.
Re: (Score:2)
Your phone may include passwords to online or home storage that contains evidence of crimes unrelated to the one for which you were stopped. It may also contain information on activity that is legal but highly embarrassing. The police do sometimes release personal information to the press on people who have not been convicted of a crime.
The phone may also contain information on legal political or religious beliefs that would be prejudicial to someones trial.
So what? GET A WARRANT. Following chains of 'evidence' obtained without said warrant can take you anywhere. A buddy of mine was interrogated by the FBI because, once upon a time, he was Timothy McVie's landlord, years before McVie moved out and blew up the Federal Building. Haddn't seen him in years since he moved out of town, before that, saw him once a month on Rent Day to get the check, and the rest of the time, didn't let his name cross his mind.
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Um, this is what warrants are for you moron. And why they are so important.
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That would be a civil traffic offense, not even a petty criminal offense. Granted, you're still subject to the same conditions as any other Terry Stop...
Re:They should allow it (Score:5, Informative)
Unfortunately you are incorrect.
Several neighbors had their houses burglarized. One neighbor found their TV for sale on Craigslist. They called the police in the city that the burglary took place in, that city PD had him contact the seller, that was a mile and a half over just into an adjacent city, so it was set up with that adjacent city's PD to meet the seller. 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.
I do not think that this was right, but it does demonstrate that it is not always possible to get a warrant even when the circumstances should be blindingly obvious.
I think that a warrant should be necessary to search someone's cellphone at any time, not just at arrest. Traffic stops, border entry, "immigration checkpoints", any reason. Mind you, if someone has been arrested and the investigation and charges against them indicate either conspiracy (like the fence for the stolen TV) or multiple perpetrators then it probably should be shall-issue for warrants for communications devices, but if a crime doesn't meet that standard then it should be much harder to get a warrant.
Re: (Score:3, Interesting)
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
Re:They should allow it (Score:5, Insightful)
It's not unreasonable at all - the guy was arrested for selling stolen goods on Craig's list, it's not unreasonable to suspect that the other items he has advertised have been stolen.
It's not like he was arrested for breaking a red light and wanting to search his house - that is not acceptable.
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Also more importantly, the burglaries in the neighborhood stopped cold after his arrest, which provides more credence that he was more involved than having unknowingly bought stolen goods to resell.
Re:They should allow it (Score:5, Insightful)
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.
I do not think that this was right,
I think it is possible, given the description, for that to be the right decision. You don't mention whether the authorities had any evidence that he had a history of negligently receiving stolen goods before, or that any of the other Craig's List listings were stolen. It is possible to conceive an innocent story that matches those events.
I have purchased several tired, used guitars recently from Craig's List. I have fixed them up and will now sell some of them. If it turns out that one of them is stolen, I would argue that does not amount to probable cause that I am warehousing stolen merchandise. Assuming I have a credible explanation for having one stolen guitar, it seems like it is substantially more likely that I am an innocent collateral actor and a warrant is not justified. Or, slightly differently; I would fight the warrant(*) and I think I would win.
I don't know the specifics of the story you are recounting, so your perception may be well founded. Based on the brief synopsis you present, however, it is possible to construct a backstory that would not support a warrant to my mind. I think that is one of the challenges that often eludes us in analysis of suspicious behavior; to consider how likely it is for an innocent person to have stumbled under the inspector's glass.
* if, for example, they found something else illegal, like a refrigerator full of murdered mimes, and attempted to convict based on plain view doctrine [wikipedia.org]
Re:They should allow it (Score:4, Informative)
You got a citation?
I used this search:
craigslist tv warrant stolen goods
I found this story, police got warrant:
http://www.krem.com/news/regional/spokane-county/Local-man-tracks-down-stolen-goods-using-Craigslist--228170651.html [krem.com]
warrant issued: http://www.wsaw.com/home/headlines/Plover-Man-Accuse-of-Selling-Stolen-Property-on-Craigslist-234155941.html [wsaw.com]
warrant issued: http://www.king5.com/news/crime/Guns-and-robbery-kits-Craigslist-stolen-items-bust-192359201.html [king5.com]
warrant issued: http://www.abcnews4.com/story/22806385/craigslist-posting-leads-to-recovery-of-stolen-property [abcnews4.com]
warrant issued:
http://www.ksat.com/news/craigslist-post-leads-to-thousands-of-dollars-of-stolen-property/-/478452/20969968/-/8tktj8z/-/index.html [ksat.com]
There are tons of instances where people selling stolen goods have been the subject of search warrants. It would be interesting to see what specific set of details made your anecdote unique enough to avoid a warrant -- but I can't find it.
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Oh if they only made those politicians swear that they have to uphold that piece of paper...
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That's an excellent question. No matter what answer you get, it won't be right in everybody's eyes. It's controversial.
As I understand it from my studies, "effects" was intended originally to mean physical belongings. Considering that persons, houses, and papers were already covered specifically, "effects" was a sort of "everything else". One decent example I've been told was "everything you'd take with you moving to a new home". In the 18th century, there was no general expectation of day-to-day privacy.