Police Blotter: Handheld search during arrest legal?
Police Blotter is a regular CNET News report on the intersection of technology and the law.
What: Police claim they can legally copy data from the handheld devices of anyone who's arrested.
When: Two judges wrestle with concepts including privacy, the Fourth Amendment, and searches, and reach two different conclusions.
What happened, according to court records and other documents:
Handheld gadgets and laptops seem to know us better than our spouses do. They know whom we talk to, which Web sites we visit, whose e-mail we ignore, and with a little extra smarts, they could probably offer an educated guess about what we want for dinner.
To snatch these useful little devices from our homes, police need warrants. But if we happen to be arrested with gadgets in our pocket or purse, police say they have the right to peruse what could be gigabytes of data for potentially incriminating files or photographs.
The frightening scale of electronic searches has made this an important--and unresolved--privacy question. Two recent federal cases illustrate how judges remain deeply divided about whether to support police powers or defend Americans' privacy rights.
In May 2008, Chester Balmer, an officer with Georgia's Savannah-Chatham Metropolitan Police Department, responded to a complaint of sexual activity in a silver pickup truck parked near an apartment complex. Balmer found a Dodge pickup truck with two people inside, obtained the driver's permission to look inside the truck, and allegedly spotted crack cocaine in the ashtray.
Balmer arrested the driver, Bernard McCray, and scrolled through the photos on McCray's mobile phone. He found images of what he believed to be a 14-year-old teenage girl in lewd poses, which led to McCray being charged with possession of child pornography. His lawyer objected to using the images as evidence, saying the warrantless search violated the Fourth Amendment.
U.S. District Judge B. Avant Edenfield disagreed. Because papers, diaries, and traditional photographs can be examined during an arrest, Edenfield reasoned, a mobile phone can too.
The second case yielded a different result. It began with a Florida drug bust involving a man named Aaron Wall. A Drug Enforcement Administration informant offered to sell several kilograms of cocaine to Wall, who was arrested when he allegedly showed up at an exchange point with a bag full of cash.
Wall had two cell phones, which DEA agent Dave Mitchell examined during the booking process (but not during or immediately after the arrest). Mitchell found and took photographs of several text messages on the defendant's phones.
Mitchell would later offer justifications for his warrantless search: 1) he regularly performs mobile-phone searches because it's common to find evidence of crimes in text messages; 2) it's a standard DEA practice authorized by the DEA Legal Department, as long as the search is performed during the booking process; 3) he was concerned that the text messages might expire after a certain amount of time; and 4) the cell phone battery may die.
When the defense attorney objected to the search, U.S. District Judge William Zloch agreed. He said, essentially, that the DEA agent lied: "The court finds Agent Mitchell's statement that he searched the phone because of his concern that text messages might immanently expire is not credible...the true, and only, purpose of the search by Agent Mitchell was to find incriminating evidence."
Zloch ordered that the incriminating text messages be suppressed, which means that prosecutors can't use them in court proceedings.
These two cases capture the different ways to look at digital devices: are they like physical containers, which can be opened at will during arrests, or does their uniquely personal nature mean that a search warrant should be required? Few of us would have traveled with decades' worth of intimate personal diaries, but that's what modern gadgetry lets us do.
One of the better-known cases is the 5th Circuit's opinion (PDF) in January 2007, which sided with police. Police Blotter has covered other cases that took the pro-police view and the pro-privacy view.
It's worth pointing out that the second proceedings may have turned out differently, if the cops had searched Wall's mobile phone at the time of the arrest, rather than waiting until booking. Then again, this is no tremendous obstacle: if judges insist on that distinction, police can respond by doing a complete copy at the time of arrest. (Note that the state of Florida says "agents should continue to obtain search warrants for securing information from cell phones seized from arrested subject." That shows that a search warrant is no insurmountable hurdle.)
Excerpt from opinion of U.S. District Judge B. Avant Edenfield on January 5, 2009, allowing the mobile-device search:
It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment. Such searches are reasonable not only because of the need to disarm the arrestee of any weapons that might be used to resist arrest or effect his escape, but also because of the need "to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction." (Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime.)
As the Fifth Circuit held in Finley, "the permissible scope of a search incident to a lawful arrest extends to containers found on an arrestee's person." A cell phone, like a beeper, is an electronic "container," in that it stores information that may have great evidentiary value (and that might easily be destroyed or corrupted).
While such electronic storage devices are of more recent vintage than papers, diaries, or traditional photographs, the basic principle still applies: incident to a person's arrest, a mobile phone or beeper may be briefly inspected to see if it contains evidence relevant to the charge for which the defendant has been arrested.
Excerpt from opinion of U.S. District Judge William Zloch on December 22, not allowing the mobile-device search:
The search of the cell phone cannot be justified as a search incident to lawful arrest. First, Agent Mitchell accessed the text messages when Wall was being booked at the station house. Thus, it was not contemporaneous with the arrest. Also, the justification for this exception to the warrant requirement is the need for officer safety and to preserve evidence...The content of a text message on a cell phone presents no danger of physical harm to the arresting officers or others. Further, searching through information stored on a cell phone is analogous to a search of a sealed letter, which requires a warrant.
The Court further finds that the search of text messages does not constitute an inventory search. The purpose of an inventory search is to document all property in an arrested person's possession to protect property from theft and the police from lawsuits based on lost or stolen property.
This, of course, includes cell phones. However, there is no need to document the phone numbers, photos, text messages, or other data stored in the memory of a cell phone to properly inventory the person's possessions because the threat of theft concerns the cell phone itself, not the electronic information stored on it.
Surely the government cannot claim that a search of text messages on Wall's cell phones was necessary to inventory the property in his possession. Therefore, the search exceeded the scope of an inventory search and entered the territory of general rummaging.
Declan McCullagh, CNET News' chief political correspondent, chronicles the intersection of politics and technology. He has covered politics, technology, and Washington, D.C., for more than a decade, which has turned him into an iconoclast and a skeptic of anyone who says, "We oughta have a new federal law against this." E-mail Declan.
And if someone's arrested with a computer in the backseat for some reason...can cops search THAT as well?
However...looking on the bright side...next time Paris Hilton goes to jail...it might be interesting to see what messages are stored on HER phone. ;)
At the same time, in my search for information, I'm curious what the circumstances were in other cases where the cell phone search was allowed. I question the case cited here because of the connection to child pornography. While I am absolutely against the abuse and exploitation of children, I also have to acknowledge that child pornography is one of those issues about which our society has gone bat-**** crazy. This has gotten to the point that we will not only look the other way but actively support just about any violation of personal rights against a person accused of, much less convicted of, said crime, and we justify this by saying that this person doesn't deserve those rights.
I understand why we freak out about this; imagine if my own children were the victims.
That said, I am curious whether, had the information on the phone revealed evidence for some other crime, would the same judge have allowed it? Or was the judge's decision to allow this search influenced by our cultural hysteria over the particular crime it apparently revealed (as the article notes, the officer believed the girl in the photo was 14; further investigation will be required to validate that suspicion)?
However, the precedent, as it currently stands, is that papers and diaries and so on can be search at an arrest without a warrant. Now, perhaps this is, itself wrong, and perhaps some judges out there would argue that. In the case of this discussion, however, this is the precedent, and the question is whether mobile devices are similar enough to fall under this precedent or not. Honestly, I am inclined to think that they are, but I'm wary of that.
The precedent is even in a stop, the police can only search papers IF THEY HAVE A REASON TO THINK THE PERSON IS COMMITTING ANOTHER CRIME, not just because they are there.
So, we still have a precedent that a police officer can search personal papers without a warrant *under certain conditions*, and the question of whether cell phones fall under that precedent or not.
OTOH, it's a lesson to not keep porn of any kind on your phone - because of the phrase "what the officer _thinks_ is a photograph of a 14-year-old girl..." err... "thinks"? Talk about a window for instant abuse... Got a weak case? hey, wait - the perp had dirty pix on his phone! We can charge 'im with child porn - because we suddenly 'think' that one of those dirty pix invovled a kid! That oughta up the ante a notch...
/P
But to say you shouldn't keep porn on your phone, idk. What about the husband whose wife wants to surprise him with a picture, you know, to keep things fresh and interesting. The guy with child porn I'm sure wasn't one of good moral standing, but who knows, that girl could have been older. Unless they can ID that girl and prove she isn't of age, I think that is a bs charge.
There are several products that will dump the phones memory -- password or not. Start your learning by searching for "CSI Stick." There are also several products that work with Blackberry and Windows mobile phones too.
I can say it with certainty for one reason, which has no technology component: Unless the police have a compelling reason to do so (and can state it in advance to the satisfaction of a judge), anything they find on a phone that requires breaking a password at all becomes inadmissible as evidence. If you have to break a password or circumvent one to get at the info, it requires a warrant, period.
So at the very least, my thinking is that if you are arrested and password lock your cell, at that immediate moment, the police would not be able to access the content of the phone without taking the same steps as they would with a seized computer. Am I mistaken? thoughts anyone?
From what I've read (I'm not a lawyer, just a humble guy in IT) I think you're correct in most cases. My point is that a password on your phone, by itself, does not mean the phone is secured from data recovery.
I've seen/been a part of cases where the authorities became involved in workplace incidents and I really feel the limit has been/was pushed - it was easier to ask for forgiveness than permission.....
Communism sprinkled with a little bit of Fascism, like a cup cake.
I don't think they should be able to look at it without a warrant and they should not be able to get a warrant unless they have other evidence that there is something criminal in nature on the device. To be able to get a warrant or to search in the hopes they may find something is in my opinion not a good enough reason to do so and not enough of a reason to receive a warrant.
Robert
Despite what they want you to think, YOU ARE NOT LEGALLY REQUIRED TO INCRIMINATE YOURSELF.
Can they hack it without a warrant? Sure, "bad guys" do that kind of thing all the time. Can they then use what they find in a court of law? Doubtful, but it might depend on the circumstances and charges (which in my not-so-humble opinion isn't right - warrants should ALWAYS be required to control abuse).
Police, lawyers, judges, advocates of privacy and victims can argue just about anything in their favor and unless there are concrete laws directly addressing cell phones, laptops etc. we're going to be arguing about these things for a long long time.
But with the economy the way it is, I doubt lawmakers will have the time to address this adequately.
There was a case in CA where a caucasian woman was pursued by an African-American CHP. The woman claimed she was running because she was afraid the CHP guy was planning on raping her, (this has happened several times with the CHP and I think, if I remember correctly, inappropriate remarks were made to her in a stop before the pursuit). In order to be able to preserve the evidence that she thought would prove her case, she had a friend who was in the car with her videotape the whole thing.
Eventually, she was apprehended. While 'inventorying' her car, the cops found the video. They looked at the videotape. They did a great deal of editing of the tape - basically, they cut out everything that looked bad for them. Then they used it against her.
She was convicted and appealed. The appeals court threw out the videotape evidence and found that cops weren't entitled to look at the contents of such a device in an 'inventory' search. The case was dismissed, because, without the video, the state didn't have a case.
The woman sued the CHP and the county. They settled out of court...
I don't see where a cell phone, computer, palm pilot, et cetera is any different than a video camera. I don't see any danger that a cell phone, computer, et cetera will be 'erased.' The cops have control of it, they can prevent such an occurrence.
Whichever view prevails, perhaps now is the time to invest in encryption software.
Otherwise, thank these cops for taking us one step closer to a police state...
If we would stop that, get rid of the drug laws, get rid of the other 'public protection' laws outside of murder, assault, TRUE forcible rape, etc...... our society would be MUCH safer and more pleasant than it is right now.
On another issue.... get rid of the damn religion. Make our country go back to what it was SUPPOSED TO BE: a secular state where bringing religion or religious morality into politics was supposed to be punished HARSHLY.
We decide whether a person gets their right to be free from unwarranted searches, because of the offense? The cops have no right to compel you to assist in the apprehension of other criminals. As far as I know, there is no 'serious crime' exception to the fourth amendment - particularly when the cops could, easily, get a warrant.
This is the process of being litigated in a border seizure of a laptop. The ICE swiped this laptop that they were sure had kiddy porn on it. It was password protected. So far, they haven't been able to force the guy to give up the password. A password is testimentory evidence and one can not be compelled - warrant or no - to incriminate himself. I am not sure what the status on this case is...
Frankly, who would have child porn on his computer without a password? In fact, who would keep CP on his computer at all when there are DVD-R's and CD-R's that can hold the child porn if someone really wanted that?
I have lolicon porn (drawn pictures of children, not based on ANY child) on my computer.... some people have said "That's child porn!" I tell them "Not by the Supreme Courts rulings!"
This whole anti-pedosexual hysteria needs to come to an end, and we simply need to start teaching children that there is absolutely NOTHING wrong with sex in general, that it is dangerous if you do not take proper precautions (mainly getting to know the person you sleep with and making sure that they have no STD's) but not as dangerous as people would like them to believe, and that there is absolutely NOTHING wrong with sleeping with a pedosexual. Sure, they are not going to 'stay with you your entire life', which most pedosexuals were honest about with me as a child...... but then again, we would do better to tell people today that NO ONE is going to stay with them their entire life and have them learn to deal with that and get RID of monogamy.
-
by AnonTip
January 15, 2009 9:11 AM PST
- Excellent, concise reporting. The most interesting (and frightening) aspect of this story is that Decan appears to be the ONLY ONE reporting on it. Google searches of the news & web turn up almost nothing.
-
Reply to this comment
-
(30 Comments)These are pivotal events that will shape the future of this country for generations to come, and Decan is one of (very) few sentinels on watch while we are otherwise saturated with "news" about Paris Hilton, etc.
Keep up the great work, Decan. And CNET, give this guy a raise - he is one of the true highlights of your publication.