
Police seizure of text messages violated 4th Amendment, judge rules - 001sky
http://arstechnica.com/tech-policy/2012/09/police-seizure-of-text-messages-violated-4th-amendment-judge-rules/
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stephengillie
Yet police can legally impersonate you if they have your cell. Police in WA
state confiscated a cell from a dealer, read past messages, then set up new
deals to arrest the users.

<http://news.ycombinator.com/item?id=4266538>

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imgabe
Police lie to suspects all the time to trick them into confessions. I don't
see how that's any different.

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Karunamon
I'd really like to see this process banned. Just because it's legal doesn't
mean it's proper or just.

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dmishe
Wait, it is unjust to trick a criminal into revealing himself?

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Karunamon
That's not what I said. I said that police should be able to do their work
without resorting to lies and deception.

Also, notice that GP said "suspect", you said "criminal". Huge difference.

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tptacek
They manifestly cannot do their work without resorting to deception. Virtually
all policework above the level of street patrols turns in one way or another
on some flavor of deception.

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qbit
The counter example that comes to mind is a detective who gathers physical
evidence in order to convict a criminal. Where is the deception there?

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jerrya
_Savage reasoned that cell phone contents are deserving of Fourth Amendment
protection against unreasonable searches and seizures because people generally
keep them on their person at all times. "Text messages are often raw,
unvarnished, and immediate; revealing the most intimate of thoughts and
emotions to those who are expected to guard them from publication," she wrote,
further stating that the court "does not find that the remote possibility that
an unintended party will receive a text message due to his or her possession
of another person‘s cell phone is sufficient to destroy an objective
expectation of privacy in such a message_

This seems like one of these decisions that defy reality.

In this case the phone was not being kept on the person, and yet the judge
writes that phones are expected to be kept on the person contra reality.

If people expect text messages to be delivered immediately, they are wrong.
Their expectation doesn't change reality.

If some people expect text messages to be kept private, they are wrong. Their
expectation doesn't change reality.

If the cop found the cell phone, beeping, with a new message and that message
was incriminating, I have no problem with it being used against them.

If the cop picked up the phone, beeping, with a new message, and then pressed
buttons to get to the messaging functions where he then read the incriminating
message, that is much more problematical.

If people think their text messages are private, they are just wrong.

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tptacek
The "reasonable expectation of privacy" is critically important to the
interpretation of the 4th Amendment in criminal controversies. Reasonable
people, like it or not, do expect that their text messages are private.

It's a rather self-defeating view of the 4th Amendment that suggests that,
because the government could easily gain access to a piece of data, that data
must therefore not be private. The government can easily get access to _most_
data.

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jerrya
_It's a rather self-defeating view of the 4th Amendment that suggests that,
because the government could easily gain access to a piece of data, that data
must therefore not be private. The government can easily get access to most
data._

Good thing I never said that then!

I said we shouldn't write laws that defy physics. Judges should not write laws
that say people hold their phones on their persons at all times when we know
that not to be the case. Judges should not write laws that text messages are
to be considered private when all of us know that the next person we hand our
phone to can trivially (without government equipment) read our messages.

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tptacek
The next person you hand your diary to can read your diary. What's your point?

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001sky
_"In addition, this Court finds that the Defendant made a preliminary showing
that numerous sworn statements made by police officers in a dozen warrant
affidavits were either deliberately false or made in reckless disregard of the
truth..."_

A pattern of abuse, seems to be part of the issue here.

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grecy
And what punished do the Police Officers get for lying in sworn statements.. ?

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stusmall
What I am confused on, and maybe there is something missing from the story,
but it sounds like the office stumbled upon those text messages in his normal
activities. I don't know much about the law but I assumed what he did was
okay.

Was he over stepping his bounds in answer someone else phone or was it that
the court didn't believe he was doing it only to get to touch with the birth
father?

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tptacek
Absent a warrant or an arrest, the police cannot use your phone to "get in
touch" with one of your contacts and then derive evidence against you from
that action. That seems sensible to me.

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hannibalhorn
I'm curious as to why this didn't fall under inevitable discovery? I imagine
that a dead 6 year old, having received blows to the stomach, would warrant an
actual investigation and (most likely) the phone records of everyone at the
scene could have been subpoenaed.

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vacri
What would be the link between suspecting a child died of abuse and applying
for a warrant to read text messages?

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hannibalhorn
1) Generally speaking, a dead kid gives the police a LOT of leeway.

2) If they suspected somebody at the scene of having knowledge as to the
culprit, I think most judges would have allowed them access to phone records
for everyone at the scene during the time period in question.

Basically, this wasn't a stoner crossing the border that might have had photos
of himself smoking something illegal, this is a dead kid, and I'm pretty sure
the cops would have asked for those records in due course. And I'm pretty sure
a judge would have said yes.

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tptacek
The kid wasn't dead when the phone was searched, and there was, as the court
itself noted, no evidence of wrongdoing apparent the the officer who conducted
the illegal search.

But that's besides the point. "Inevitable discovery" does not simply mean what
it sounds like on a message board thread. It is not an invitation for the
police to sieze everything they can and then come up with a compelling story
for how they would have found it anyways. In particular: when the evidence in
question is the direct result of an illegal search, its inevitability probably
doesn't matter.

If the officer had a grave suspicion of wrongdoing, he had available to him a
mechanism to search the phone: he could have arrested its owner or any other
occupant of the house. What he can't do, at least without a warrant, is walk
around someone's private home without permission and search their belongings.
Had the message been flashing on the front of the phone, it would have been in
plain sight and probably have been allowed. The message was not in plain
sight.

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philip1209
If the phone were face-up on the counter, the text message appeared, and the
officer photographed, but did not disturb, the phone, how would the case be
different?

