California appeals court approves cell phone search during traffic stop(theblaze.com)
theblaze.com
California appeals court approves cell phone search during traffic stop
http://www.theblaze.com/stories/calif-appeals-court-approves-cell-phone-searches-during-traffic-stops/
8 comments
As usual, the sensationalist headline implies something very different from what is actually the case.
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)
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)
You might be better off with the smart phone, if any of the phone numbers in your call history are relevant to the police.
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.
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)
[deleted]
There's no secret software the police have that will suck all the info off an iPhone with a 6-digit PIN.
There are the scary tools at http://www.iosresearch.org/ (for one brand of phone under certain circumstances).
There are the scary tools at http://www.iosresearch.org/ (for one brand of phone under certain circumstances).
I'm going to take Dino's word over that of the people supplying forensics tools to LEOs: a 5-character alnum passphrase on iOS takes years to brute force. The actual filesystem on an iPhone is encrypted under a key encrypted by (IIRC) a key derived from the PIN.
Well, then you are wrong. @JZdziarski, aka Jonathan Zdziarski, aka NerveGas, is a former member of the "iPhone Dev Team", a group (which I am currently part of) that focuses on "jailbreaking" the iPhone (removing the restrictions on its usage and allowing third party software to run on it).
Let's put it this way: it is absurd to believe that the iPhone's filesystem is encrypted with the PIN number. When the phone turns on, it is already booted up, and applications like MobileMail, Skype, and Latitude are already in the background running with your data. You can receive text messages and phone calls, which are stored as notifications and in the appropriate databases: you don't need to unlock it first.
Meanwhile, none of the jailbreaking tools (which often operate while the phone is in "DFU" mode, after it has been rebooted and without any other human interaction) require you to type in your PIN, yet make tons of filesystem modifications to both partitions (the system one with the firmware from Apple, and the user partition with the data for each user), which should be a pretty obvious clue that you don't need anything from the user to get access to any of that data.
Instead, all of the data is simply encrypted with a key derived from the device, which therefore means that all you need is "virtually any exploit" on the device, whether it be userland (send a fancy SMS message to the device which crashes CommCenter or SpringBoard) or bootloader (attacking it over USB in DFU mode, stealing the keys directly; something we currently can do for all Apple devies but the iPad 2), in order to get access to the personal data (even stuff you recently deleted, of course, due to how filesystems work) which is on it.
Let's put it this way: it is absurd to believe that the iPhone's filesystem is encrypted with the PIN number. When the phone turns on, it is already booted up, and applications like MobileMail, Skype, and Latitude are already in the background running with your data. You can receive text messages and phone calls, which are stored as notifications and in the appropriate databases: you don't need to unlock it first.
Meanwhile, none of the jailbreaking tools (which often operate while the phone is in "DFU" mode, after it has been rebooted and without any other human interaction) require you to type in your PIN, yet make tons of filesystem modifications to both partitions (the system one with the firmware from Apple, and the user partition with the data for each user), which should be a pretty obvious clue that you don't need anything from the user to get access to any of that data.
Instead, all of the data is simply encrypted with a key derived from the device, which therefore means that all you need is "virtually any exploit" on the device, whether it be userland (send a fancy SMS message to the device which crashes CommCenter or SpringBoard) or bootloader (attacking it over USB in DFU mode, stealing the keys directly; something we currently can do for all Apple devies but the iPad 2), in order to get access to the personal data (even stuff you recently deleted, of course, due to how filesystems work) which is on it.
This all makes total sense. I 100% buy that someone with an exploit can get access to a running iPhone.
(I am frequently wrong even about things I know well; how iPhone device encryption works is not one of those things).
(I am frequently wrong even about things I know well; how iPhone device encryption works is not one of those things).
> 5-character alnum passphrase on iOS takes years to brute force.
No, it doesn't. That's only 60 million combinations. Writing the code would take longer than the brute force search. Of course, there are already commercial applications that do all that.
No, it doesn't. That's only 60 million combinations. Writing the code would take longer than the brute force search. Of course, there are already commercial applications that do all that.
You can't say that without knowing the KDF they're using.
I wouldn't call these tools "Scary" unless you're a criminal. These tools have been used to build networks of previously unknown terrorists, put murderers in jail (two of which I had the pleasure of testifying for in high profile cases pro-bono), and frequently (on a daily basis) finds smoking guns in child rape and molestation, grand theft, kidnapping, and a number of other cases to which you should be thankful that you are entirely oblivious to. If you knew what really went on in our society, you'd be helping the good guys out too. I imagine you probably have in your mind some redneck cop pulling you over and checking for text messages on your phone illegally, or some other stupid misappropriation of authority... 99.99% of the time, these tools are used for the right purposes, and against people who might be living on your street, committing unspeakable offenses in private.
Now, as for the tools, saurik is entirely correct. The PIN code is, for the most part, just a GUI lock - think of it as a screen saver lock. The file system is encrypted on the chip, but applications need to be able to read and write from the file system. If you read the FAQ, I make no secret about how this works: we boot a custom RAM disk (from DFU mode) that mounts the disk. The kernel takes care of the decryption and because we're not actually booting the OS on disk, we don't have any pesky screen saver lock or anything else to even content with, though if we did, the forensic imaging process runs entirely in the background, and has the same level of access (root) that most of Apple's processes do.
As for encryption, what IS encrypted on disk that you can't get from the file system includes keychain passwords, HFS journal (to undelete files, thanks to Jean-Baptiste's most awesome code), and files protected with iOS' data-protection classes. These files are few and far between. In fact, a vast majority of the evidence you'll find on an iPhone is entirely unencrypted. For the files that ARE encrypted, Jean-Baptiste's brute forcing and decryption tools allow us to extract the master encryption keys from the device. Each keychain password is encrypted with its own key ("AES wrap"); we apply the device's keys to this wrap, decrypt the password's key, then use that key to decrypt the password. Apple's data-protection classes are about the same. Each file is wrapped and we use one of the class keys to ultimately decrypt the file. This includes the few files on the device that are encrypted, such as email + attachments, and some third party data files using this encryption.
Once you unwrap that, you'll find that even applications using their own encryption code are storing keys in the keychain - so once the keychain is decrypted, the keys to these third party crypto stores are equally exposed.
The moral of the story here is that the only GOOD way to protect files is 1. To encrypt them (something Apple really doesn't do very well), 2. To have the encryption depend on a very complex key that only the owner has knowledge of and must supply in order to decrypt the files, and finally 3. To protect the device in such a way that the key cannot be intercepted by trojans or other malware. Unfortunately, iOS fails on all of these counts, making it very easy (thanks to many world class hackers contributing code) to defeat all of the encryption on the device, and MOST of the encryption even when the device is password locked.
Scary? What's scary here is just how neglected security is on mobile devices, and how easy it would be for me, or Saurik, or anybody who can use code.google.com to steal all of the data on your device in just a few minutes.
Now, as for the tools, saurik is entirely correct. The PIN code is, for the most part, just a GUI lock - think of it as a screen saver lock. The file system is encrypted on the chip, but applications need to be able to read and write from the file system. If you read the FAQ, I make no secret about how this works: we boot a custom RAM disk (from DFU mode) that mounts the disk. The kernel takes care of the decryption and because we're not actually booting the OS on disk, we don't have any pesky screen saver lock or anything else to even content with, though if we did, the forensic imaging process runs entirely in the background, and has the same level of access (root) that most of Apple's processes do.
As for encryption, what IS encrypted on disk that you can't get from the file system includes keychain passwords, HFS journal (to undelete files, thanks to Jean-Baptiste's most awesome code), and files protected with iOS' data-protection classes. These files are few and far between. In fact, a vast majority of the evidence you'll find on an iPhone is entirely unencrypted. For the files that ARE encrypted, Jean-Baptiste's brute forcing and decryption tools allow us to extract the master encryption keys from the device. Each keychain password is encrypted with its own key ("AES wrap"); we apply the device's keys to this wrap, decrypt the password's key, then use that key to decrypt the password. Apple's data-protection classes are about the same. Each file is wrapped and we use one of the class keys to ultimately decrypt the file. This includes the few files on the device that are encrypted, such as email + attachments, and some third party data files using this encryption.
Once you unwrap that, you'll find that even applications using their own encryption code are storing keys in the keychain - so once the keychain is decrypted, the keys to these third party crypto stores are equally exposed.
The moral of the story here is that the only GOOD way to protect files is 1. To encrypt them (something Apple really doesn't do very well), 2. To have the encryption depend on a very complex key that only the owner has knowledge of and must supply in order to decrypt the files, and finally 3. To protect the device in such a way that the key cannot be intercepted by trojans or other malware. Unfortunately, iOS fails on all of these counts, making it very easy (thanks to many world class hackers contributing code) to defeat all of the encryption on the device, and MOST of the encryption even when the device is password locked.
Scary? What's scary here is just how neglected security is on mobile devices, and how easy it would be for me, or Saurik, or anybody who can use code.google.com to steal all of the data on your device in just a few minutes.
Correction: testifying against, not for.
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/
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/
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).
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).
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.
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.
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.
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."
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.
Searches do not invariably require warrants. For instance, you will be searched "incident to arrest" if you are formally arrested (ie, not merely detained). This is part of why the police cannot casually arrest random people. Similarly, the police cannot casually impound random cars.
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)
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.
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.
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.
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.
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.
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.
My advice is assuming you've yet to be arrested or questioned thoroughly. Cops are legally required to answer these questions truthfully, and if don't ask them specifically cops are known to play with semantics and probing questions to get you to implicate yourself.
Approaching a police interaction like I said above helps you end the interaction before letting the cop get near the point of reasonable suspicion.
Approaching a police interaction like I said above helps you end the interaction before letting the cop get near the point of reasonable suspicion.
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.
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 :)
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 :)
Saying "go ahead and search my trunk but I don't have a key" sounds like a spectacularly bad idea. You can probably safely refuse (politely) to consent to all searches under any circumstances. If the police are allowed to search without consent, they will.
The police cannot search the trunk of your car incident to an arrest.
The police can open and inventory the contents of your trunk if your vehicle is impounded.
The police can search the passenger compartment of your car if you are arrested.
You can be arrested and not have your vehicle impounded if, after arresting you and satisfying their entitlement to search the passenger compartment of your car, you have a companion who can legally drive the car away. In this case, the guy's companion was intoxicated. The police can consent to leave your car somewhere safe without impounding it, but for all intents and purposes they have the option of impounding it if it can't be removed lawfully on the spot.
If your car is impounded and its contents inventoried, anything that can reasonably be inspected as part of an inventory is admissible as evidence.
This opinion held that inventory searches did not entitle the police to "inventory" the "contents" of a phone.
But that's beside the point here, because the search that busted open the phone wasn't an inventory search; it was a search for preservation of evidence incident to arrest.
The police cannot search the trunk of your car incident to an arrest.
The police can open and inventory the contents of your trunk if your vehicle is impounded.
The police can search the passenger compartment of your car if you are arrested.
You can be arrested and not have your vehicle impounded if, after arresting you and satisfying their entitlement to search the passenger compartment of your car, you have a companion who can legally drive the car away. In this case, the guy's companion was intoxicated. The police can consent to leave your car somewhere safe without impounding it, but for all intents and purposes they have the option of impounding it if it can't be removed lawfully on the spot.
If your car is impounded and its contents inventoried, anything that can reasonably be inspected as part of an inventory is admissible as evidence.
This opinion held that inventory searches did not entitle the police to "inventory" the "contents" of a phone.
But that's beside the point here, because the search that busted open the phone wasn't an inventory search; it was a search for preservation of evidence incident to arrest.
> I believe the same rules for saying "Go ahead and search
> my trunk, but I don't have a key" applies
heh, absolutely agreed there. I think the police have a hard enough job as it is.
I thought I was the only one who thought that way.
Or password protected and encrypted. My Droid X2 won't let you mount the partitions until the password is entered.
Mind if I ask what distribution you are running?
Whichever version Verizon distributes for the X2, I haven't needed to root the phone so far.
This is the device most likely going to be used:
http://news.cnet.com/8301-17938_105-20055431-1.html
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...), 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.
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...), 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.
> 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).
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).
A traffic ticket is not an arrest. The police cannot without consent search you, your car, your jacket, your bag, or anything else simply because you were caught speeding. You have to be arrested for that to happen.
The pattern of facts here is, if you get pulled offer, arrested for DUI and driving without a license (both of which are arrestable offenses), and the cop finds a loaded gun in your car, you cannot claim that your "expectation of privacy" protects the contents of the phone with your picture on it sitting in clear view in the passenger compartment.
The pattern of facts here is, if you get pulled offer, arrested for DUI and driving without a license (both of which are arrestable offenses), and the cop finds a loaded gun in your car, you cannot claim that your "expectation of privacy" protects the contents of the phone with your picture on it sitting in clear view in the passenger compartment.
> 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.
The law's purpose when written does not preclude all the clever uses they find for it afterward.
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.
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.
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.
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.
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.
Flagged for being a wildly inaccurate, inflammatory headline.
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.