

California appeals court approves cell phone search during traffic stop - rkalla
http://www.theblaze.com/stories/calif-appeals-court-approves-cell-phone-searches-during-traffic-stops/

======
tptacek
No. Not a traffic stop. An _arrest_. Reckless driving, driving without a
license, DUI.

This probably isn't a great test case to get up in arms about. Here's the
opinion:

<http://www.thenewspaper.com/rlc/docs/2011/ca-phonesearch.pdf>

Some things you'd want to know before formulating your own opinion:

* Since at least '73, the law of the land has been that after you're arrested, the police can without a warrant lawfully search you and the immediate area under your control. The lawful objectives of that search are _either_ officer safety _or_ preservation of evidence. If you're arrested while driving a vehicle, and either of those objectives militate a search of the passenger compartment of your car, the police can search the passenger compartment of your car.

* The argument was made here in an earlier hearing that the cell phone search occurred as part of an "inventory" search; this is one of the contexts in which cell phones were claimed to be a "container". But the controlling appellate opinion here _rejected_ that interpretation; the police cannot search a cell phone to "inventory" its contents.

* But that is a moot point if you are arrested, because the police are explicitly entitled to search your person and your car _for evidence_ if you're arrested. Don't get arrested! Here we have the second "phone-as-container" context: the phone is a container for evidence of crimes. It's this interpretation that the appellate court affirmed, and reasonably so!

* More importantly, in this particular case, this guy was screwed from the get-go. He was arrested for driving a car without a license, for which he could not document lawful possession, after doing 90MPH in a 65, on suspicion (later validated) of being under the influence, accompanied by a clearly intoxicated passenger. When the police searched his car incident to the arrest, they found a loaded gun in the car under the drivers seat, along with drug paraphernalia. Then they found the Blackberry with the screensaver set to the guy holding two assault rifles. Face it. _That phone was getting searched_. The notion that searching the phone pushes the bounds of "incident to arrest" searches is _at best_ a technicality; under the same pattern of facts, a warrant for the search would be a no-brainer as well.

* ...but it seems extremely dubious to argue that this is even a real technicality. A search of your car is a big deal. The police are not lawfully entitled to invade the privacy of your car without reason. Getting arrested is a big deal. The police are not lawfully entitled to arrest you for no reason (there is a world of difference between arrest and mere "detention"). The search the police get to conduct when they arrest you is explicitly _not_ limited to officer safety (like the weapons search frisk of a Terry stop). This guy's lawyer argues that the phone search was out of bounds because of an expectation of privacy. _What_ expectation of privacy? They're in your car. They found your gun and your secret drug shit. Your privacy is largely out the window. Your trunk might, for a few minutes, be out of bounds because it's not necessarily _your_ trunk. But the phone with your dumbass picture on it holding assault rifles is clearly yours.

Someone downthread had the right practical response to this: _lock your
phone_. There's no secret software the police have that will suck all the info
off an iPhone with a 6-digit PIN. Politely decline consent for searches. _Do
not get in a police officer's face_ ; if you give them a justification to
arrest you for any reason, all bets are off. _Don't get arrested_.

~~~
hugh3
As usual, the sensationalist headline implies something very different from
what is actually the case.

~~~
knowtheory
So, oddly, the incorrect use of "peaked" instead of "piqued" made me dig up
who on earth was copy editing TheBlaze.

Discovering that it's a website founded and funded by Glenn Beck made all the
furor over dude with lots of guns make more sense. Not all phone searches or
arrests are a bad thing.

That or use a non-smart phone. That's what i do :P (though i don't have any
assault weapons to hide either)

~~~
tptacek
You might be better off with the smart phone, if any of the phone numbers in
your call history are relevant to the police.

~~~
knowtheory
Depends on who's looking for me. I basically assume that anything i'm doing w/
a telco is going to end up in the hands of law enforcement officials if they
ask for it :P The question is really one of what agency they belong to and
what their clearance is going to be.

~~~
shabble
There's a lot more info on a smart-phone than the telco necessarily stores.
They'll have call records, ip allocations, and maybe some low-res traffic
logs. Probably cell/subcell location info for a while too. I doubt they'd be
intercepting or snooping actual internet wire traffic though, and I can't
imagine how they could keep it for any length of time, just by sheer volume
(secret NSA junction-boxes notwithstanding). And any secure traffic over your
data connection is pretty much safe, except for whatever traces it leaves on
the phone itself (caches, browser history, downloads, etc)

------
CWuestefeld
I wonder what the definition is of something being "on" my phone.

Suppose that in the course of searching my phone, a cop runs the Facebook app.
He sees one of my friends make (purely as a joke, as someone who knows him
would understand) some asinine, but apparently threatening comment. That
comment wasn't there when I last looked, indeed, it's not "there" at all, but
on Facebook's server. Could I be considered to be complicit in my friend's
(joking) plot?

Now change the circumstance slightly, so instead of FB, it's a SMS text
message. Again, it just arrived, so I don't even know it's there. My friend is
jokingly asking if I've completed some illegal activity. Can this be used as
evidence against me?

The purpose of these 4th Amendment protections isn't just protection of
privacy. It's also because in many cases, the evidence implies incorrect
conclusions when you assume that the suspect knowingly and intentionally
possessed something (of which he was really unaware).

For me, this idea was really driven home by the movie "The Star Chamber"[1].
On the surface it's just a crime thriller, but the idea it posits is really
worth thinking about.

[1] <http://www.imdb.com/title/tt0086356/>

~~~
Tyrannosaurs
The examples you give aren't great. I don't think there's anything you can be
found guilty of for reading someone else's threatening comment on Facebook or
elsewhere. With the SMS the critical thing is the implication that you're
guilty of something - whether you'd read it or not doesn't matter.

To look at the idea further though, these things are best thought of as
fishing trips. It's very unlikely anything on your phone is going to directly
incriminate you, it's more likely that it's going to point to involvement in a
crime and provide the police either with further lines of enquiry
(investigating the person who sent the message) or a reason to carry out a
more thorough investigation of you (and potentially grounds for a warrant).

On it's own it would it seem that anything of this sort would be, at best,
circumstantial evidence.

(All of this assumes that it wouldn't be struck down as unconstitutional -
state laws obviously not being able to overturn the constitution).

~~~
tptacek
You should be careful when you talk about "circumstantial evidence". There's a
very pervasive meme that circumstantial evidence is somehow invalid, but that
has never, ever been the case.

~~~
Tyrannosaurs
It depends where in the world you are.

In the US it's very much second class evidence (though not invalid) but in,
say, Italy, it's far more common to build a successful case based largely on
circumstantial evidence.

------
fourk
The title seems misleading, unless I'm misreading something. From the article:

    
    
      >  "the judge ruled that the examination of the cell phone was legal because
      >  police were allowed to survey the impounded car for their own safety, and
      >  to preserve evidence."
    

The number of traffic stops where an impoundment occurs is clearly a very
small subset of all traffic stops. Shouldn't this be titled 'California
appeals court approves cell phone search during vehicle impoundment'?

~~~
nhebb
They searched the phone before obtaining a warrant. This ruling is troubling
not because of the case at hand, but because of the precedent it sets. It's
definitely an area where the law could be better defined.

~~~
fourk
Is a warrant required to search a vehicle during an impoundment? During a
routine traffic stop, a warrant, permission, or probable cause is required to
search a vehicle. Doesn't this ruling set the precedent that if and only if
the police would be legally allowed to search a vehicle, they may search a
phone contained within that vehicle? (IANAL)

~~~
jessedhillon
IANAL either.

However, in South Dakota v. Opperman
(<http://supreme.justia.com/us/428/364/case.html>) the court upheld that
police may search and inventory a car without a warrant, even though the car
was impounded for parking violations and not on suspicion of drug offenses (as
it turned out was the case). I would conclude, therefore, that a car impounded
during an arrest can definitely be searched.

------
hack_edu
Lock your phones. Do not consent to searches, saying it cleary and decisively.
Ask why you are being held, and continue to ask if you can leave.

~~~
dkokelley
None of that would have mattered in this case. He was arrested already. The
phone search was part of an "inventory" search for impounding the car. A judge
would have issued a warrant for the phone contents as he did for the home
later in the case (where the authorities found guns, drugs, and money).

The interesting part of this case has to do with the precedent that a cell
phone is a "container" just like a glove box or safe. As such, when being
legally searched (such as when doing an inventory search) it can be accessed
and the contents claimed as evidence.

~~~
tptacek
This is incorrect in a couple of interesting directions, if you read the
(annoyingly numerous) other comments I've written in the thread. Here, I'll
just suffice it to say that even in an arrest search, and _maybe_ even in a
warranted search, if the police can't decrypt your phone, that's the ballgame.

------
jmjerlecki
Im curious if this has any impact to people who have their phone password
protected. "Here, you are more than welcome to go through my phone....just
need to guess the password." You can't even hook your iPhone up to iTunes
without inputting that password, so I can't imagine those phone searching
devices can bypass that altogether.

~~~
rkalla
The court ruled that this is OK because your phone is considered a
"container", given that, I believe the same rules for saying "Go ahead and
search my trunk, but I don't have a key" applies -- assuming the cop doesn't
just pry it open in some physical way.

The threat being that you'll get detained and held.

I think that is always the implied threat, that it is just easier to let
someone of authority overstep their bounds so as to avoid personal
inconvenience and discomfort as opposed to taking a stand and forcing the
legality of the issue.

Then if you are illegally detained, that's ANOTHER issue you are welcome to
pursue if you enjoy court and lawyers, but we typically don't. The (expected?)
result of that is one side keeps pushing harder and harder until we eventually
start pushing back.

These seem like standard social mechanics much like what corporations tend to
do left unwatched or govt laws. They keep tightening or growing their area of
influence until someone or something pushes back.

Our society is just a giant physics simulation of forces interacting on each
other, like little (or big) spheres of gravity.

I'd love to see a visualization of the social world around us, would be
interesting... you could see the formation of under ground movements becoming
more mainstream as those individual forces combined into bigger forces
temporarily to combat larger forces, then once the equilibrium was rebalanced,
the larger force would disband and go back to micro-influencing the
environment around it.

wow... I got derailed there :)

~~~
alttag

      > I believe the same rules for saying "Go ahead and search 
      > my trunk, but I don't have a key" applies
    

I see your point, but think you'll agree it's best not to phrase it as a
challenge: "I don't consent to the search. I don't have a key."

~~~
rkalla
heh, absolutely agreed there. I think the police have a hard enough job as it
is.

------
sweeper33
I think this is a dangerous road to go down. Even though I feel that Safety on
the roads is paramount and that there are way too many people that talk or
text while on their phones, I think this becomes an invasion of privacy unless
the police officer has reasonable cause to go through your phone (i.e. saw you
on your phone or texting). Also, cell phones are only a drop in the bucket.
I've seen and had my passengers take pictures of people in their cars putting
on make up or even reading! It's insane what all is out there. So what's next,
cops will check women's purses for makeup usage? Books in the car for freshly
turned pages?

I know i'm being dramatic here, but the point is, there has to be a line
somewhere. I do want the roads to be safer and I want drivers to be less
distracted (texting while driving is actually more dangerous than driving
drunk according to a study
[http://www.cnbc.com/id/31545004/Texting_And_Driving_Worse_Th...](http://www.cnbc.com/id/31545004/Texting_And_Driving_Worse_Than_Drinking_and_Driving)),
but I also don't want some random police officer rifling through my private
text messages, e-mails and voicemails for the purposes of seeing if I should
get another ticket.

Additionally, I often make short trips for lunch (.1 miles or less). If a
police officer does go through my phone, how is he to know I didn't send that
text just as I got in my car before I left Wendy's to return to the office? He
doesn't, no one does. That's the problem with this and why I feel it is too
much of an invasion.

~~~
rkalla
> Even though I feel that Safety on the roads is paramount and that there are
> way too many people that talk or text while on their phones

This law isn't about keeping people safer, whether you were on your phone or
not the officer has the right to search it (apparently). I imagine the
motivations for this law is the same straw men they always are: drug dealers,
illegal activity, child pornography, etc. etc.

> I also don't want some random police officer rifling through my private text
> messages, e-mails and voicemails for the purposes of seeing if I should get
> another ticket.

I don't even think it is that clear cut; if the officer pulled you over, he
already has a reason to ticket you. Looking through your phone isn't going to
make that better/worse unless you are involved in illicit activity and they
find evidence of that on your phone. Then worse :)

> Additionally, I often make short trips for lunch (.1 miles or less). If a
> police officer does go through my phone, how is he to know I didn't send
> that text just as I got in my car before I left Wendy's to return to the
> office?

You don't need to worry about this (not what the law is for).

~~~
darrikmazey
> You don't need to worry about this (not what the law is for).

The law's purpose when written does not preclude all the clever uses they find
for it afterward.

~~~
rkalla
Absolutely right, I should have clarified that I was speaking from a "first-
cut" perspective.

Out of the gate, say tomorrow, when this law starts getting leveraged against
folks I was saying that getting your phone searched specifically because you
were talking or texting on it and an officer caught you were likely two
different things (there are already "don't use while driving" laws in CA I
think).

But like you said, weeks-months-years down the road, there could be some very
creative (read: awful) applications of this; just like we saw with wire taping
and the "national security" catch all after 9/11.

~~~
tptacek
From what I can tell, there's nothing remotely "clever" at play here. The
search context we're talking about is many decades old. The arrest that
instigated it was not subtle; _any_ of (i) reckless driving, (ii) driving
without a license, _or_ (iii) DUI can get you searched "for reals". In a "for
reals" search, your phone is not off limits, never has been, full stop.

If you want to force the situation into a grey area, use a strongly encrypted
passphrase protected phone, like an iPhone. You'll have a lot more room to
maneuver in the case where someone tries to compel you to divulge your
passphrase. That's not what happened here.

------
georgefox
I expected to see a lot of Steve Jobs-related posts on HN today, but I did not
expect a sensationalist article from a Glenn Beck website to make the front
page.

------
georgieporgie
Flagged for being a wildly inaccurate, inflammatory headline.

