

Court: Warrantless cell phone searches legal - bdking
http://news.cnet.com/8301-1023_3-57388786-93/court-warrantless-cell-phone-searches-legal/

======
jfarmer
Here is Orin Kerr's analysis of Posner's opinion:
[http://volokh.com/2012/02/29/judge-posner-on-searching-a-
cel...](http://volokh.com/2012/02/29/judge-posner-on-searching-a-cell-phone-
incident-to-arrest/)

Posner's opinion is strange. Robinson (the main precedent) held that the 4th
amendment permits the police to search any property on a person incident to
arrest.

The tension is that the case is almost 40 years old, well before cell phones,
or any other technology that let someone carry around every detail of their
life with something the size of a pad of paper.

So one side (the government) says: "Robinson is clear. We can search the
phone."

The other side says: "No, cell phones are different. We need a precedent that
makes sense in the 21st century."

This binary can-search/can't-search is the "bright line" rule Kerr talks
about. Posner comes out of left field and argues as if it's some kind of
sliding scale. NEW RULE.

Robinson is only about property on the arrestee. There are other cases about
property in the car but not on the arrestee, e.g., Gant.

Both Gant and Robinson have give really clear rules, and Posner does a good
job muddling it all up. It's sort of funny coming from a so-called "law and
economics" guy -- you'd think all else being equal, you'd prefer opinions with
clear rules so as to lower the costs of administration.

As I understand it, Orin's position is that cell phones are like cars (so Gant
is controlling), not like cigarette containers (so Robinson is controlling).

Gant says that police can search your car incident to an arrest if they
believe it contains evidence of the crime for which you were arrested.

Applying that rule is a principled way to avoid the problem with Robinson and
cell phones, i.e., you get arrested for speeding and the police download your
whole browser history.

------
dminor
Title doesn't mention that this is in conjunction with an arrest - police
already have some increased latitude in searches when arresting someone.

~~~
slavak
Not only that, but if I'm reading the article correctly the ruling only refers
to turning on the phone in order to find out its number. They didn't actually
rifle through the phone's phone-book, call history, or anything of the sort.

~~~
doublerebel
This quote FTA extrapolates the definition to include all kinds of data:

 _"So opening the diary found on the suspect whom the police have arrested, to
verify his name and address and discover_ whether the diary contains
information relevant to the crime for which he has been arrested _, clearly is
permissible..._

~~~
andylei
these are searches incident to arrest. they can already search anything found
on your person when they arrest you. it makes sense that they can search your
phone, which is an item found on your person.

~~~
doublerebel
That is not true.

IANAL, but several sources declare that the opening of locked containers
incident to arrest is determined by local enforcement policy and NOT by
precedent or federal law:

[http://www.fbi.gov/stats-services/publications/law-
enforceme...](http://www.fbi.gov/stats-services/publications/law-enforcement-
bulletin/april_2011/searches)

<http://www.llrmi.com/articles/legal_questions/4-aug09.shtml>

[http://www.jonesdayappellate.com/files/CaseStudy/4aaa6c32-8b...](http://www.jonesdayappellate.com/files/CaseStudy/4aaa6c32-8b81-4591-a7e7-10f90d504653/Presentation/CaseStudyFile/5e0752e2-cdef-435a-8b0a-11f2b185e861/dillardus03TermCERT.pdf)
[PDF] (Google Quick View of PDF:
[https://www.google.com/url?sa=t&rct=j&q=&esrc=s&...](https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=6&ved=0CFoQxQEwBQ&url=https%3A%2F%2Fdocs.google.com%2Fviewer%3Fa%3Dv%26q%3Dcache%3AbIa-
YOus1REJ%3Awww.jonesdayappellate.com%2Ffiles%2FCaseStudy%2F4aaa6c32-8b81-4591-a7e7-10f90d504653%2FPresentation%2FCaseStudyFile%2F5e0752e2-cdef-435a-8b0a-11f2b185e861%2Fdillardus03TermCERT.pdf%2B%26hl%3Den%26gl%3Dus%26pid%3Dbl%26srcid%3DADGEEShemxpSJpg1G0oknqTWVG3h5rXoKWn7NRg5hl8-SCUcgVds-
kic3eVTLCObK30yXIYEAaNZ8--
2N2Iqmfz3Si6BRsXe8Ru19VxzlKgu4s-g0VDaYtCDTf7PovvVs7jqq90K0C06%26sig%3DAHIEtbSdu6ZOJk1xotlJPr9E1l8TEhqViQ&ei=p_lPT_C3MILViAKp8Py0Bg&usg=AFQjCNFjmnbWhwyr0IWFZlQxybyyy92NTA&sig2=1UUbriBSBqLguxYsDgq4rQ)
)

[http://www.bernardbrody.com/law-v-technology-can-the-
police-...](http://www.bernardbrody.com/law-v-technology-can-the-police-
search-a-password-protected-cell-phone/)

[http://findarticles.com/p/articles/mi_m2194/is_n1_v65/ai_184...](http://findarticles.com/p/articles/mi_m2194/is_n1_v65/ai_18498724/pg_3/?tag=content;col1)

~~~
andylei
yeah, your sources say that the police, if they have consistent policies about
searching arrestees containers, they can search any container they find that
is locked.

------
blario
Which is why everyone should maintain a passcode.

------
maeon3
When humans offload most of who we are onto handheld devices, the fifth
amendment will not be necessary, just take the phone and query it for thought
histories of the guilty, er, suspect.

Torturing a suspect for self incriminating details: not ok. Breaking
encryption on a phone, bypassing security password lockouts and accessing
memory history: ok!

~~~
tylermenezes
Are you claiming breaking encryption and searching through history is akin to
torture?

~~~
headShrinker
I think he is implying these are the two tactics police used to obtain
evidence; the old style is active coercion (which is illegal but fairly common
in police arrests and interrogation), the new style is querying phone, email,
device records, decrypting harddrives (is now potentially legal).

~~~
sukuriant
It's more akin to breaking into a safe you carry on your person, not
bludgeoning you into speaking. Bad connection.

~~~
blario
By 'coercion', I don't think he meant "bludgeoning". When the police tell you
that you've already been identified by a witness, when it is a complete lie, I
take that to be coercion. Or when they inflict emotional turmoil by arresting
you publicly, handcuffing you in public, running your prints in a police
station, and treat the innocent as guilty in order to 'coerce' them into an
unstable state of mind. Coercion is inflicting duress, which doesn't have to
be similar to physical torture, imo.

