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CA Court rules cell phone can be searched incident to arrest

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hcso1510
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This came in from 4n6art in another thread.

The CA High Court ruled today that a cell can be searched incident to arrest without a warrant

http//www.law.com/jsp/ca/PubArticleCA.jsp?id=1202476909376

Obviously the Supreme Court is going to have to address this issue. I wonder what the Judges would have ruled if this guy had a computer in a back pack? The article does not mention if the search needs to be contemporaneous to the arrest or not.

Justice Chin wrote the majority said the high court has held that it doesn't matter what the item is-it can be searched without a warrant if it has been properly seized. Excuse me?

In Diaz the cell phone was "immediately associated with his person." So I guess a computer in a back pack would be the same? How about arresting a guy for public drunk and looking through his computer and finding CP? Good Police work, right Judge?

I'm all for relaxing some of the requirements to search cell phones, but until the Supreme Court rules on this the Judicial system will continue to see saw on this issue. I still think we better be getting warrants. When you think about it…Why not get one?

 
Posted : 05/01/2011 3:50 am
jhup
 jhup
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Supreme Court of Ohio went just the opposite direction.
"Warrantless Search of Cell Phone Data Barred Unless Necessary for Officer’s Safety or to Preserve Evidence"

In my opinion, if other States follow, we will see increased encryption, password use, poison pill, and dead-man switch solutions on smart phones.

 
Posted : 05/01/2011 4:07 am
(@bithead)
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I predict the CA ruling will be overturned in the 9th Circuit.

 
Posted : 05/01/2011 7:08 am
(@dficsi)
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Just learned that here in the UK that has pretty much always been the case. Going to leave my nice phone at home and start carrying around a crappy little Nokia 1100.

 
Posted : 05/01/2011 2:16 pm
hcso1510
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Here is the link to the case if anyone is up for 38 pages.

http//www.courtinfo.ca.gov/opinions/documents/S166600.PDF

I read today that this guys Attorney is going to appeal to the US Supreme Court. As you can see the "see saw" with Smith V. Ohio coming out about this time last year the pendulum has dangerously swung.

Maybe if the High Court fast tracks this we will know something in about 2016 D

 
Posted : 06/01/2011 1:03 am
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I can appreciate your point of view, but IMHO I am against anything which is more intrusive into everyone's lives, for a chance at some fruit.

Information on the phone leads to a phone number, which leads to a seizure of a computer of someone else who wasn't even in the same state as the stop, but because this persons number was in the phone, the persons computer on the opposite coast was seized and is still being held, that leads to a person 5 states away having a trap put on their phone.

It's a vicious circle.

Obviously the Supreme Court is going to have to address this issue. I wonder what the Judges would have ruled if this guy had a computer in a back pack? The article does not mention if the search needs to be contemporaneous to the arrest or not.

Justice Chin wrote the majority said the high court has held that it doesn't matter what the item is-it can be searched without a warrant if it has been properly seized. Excuse me?

In Diaz the cell phone was "immediately associated with his person." So I guess a computer in a back pack would be the same? How about arresting a guy for public drunk and looking through his computer and finding CP? Good Police work, right Judge?

I'm all for relaxing some of the requirements to search cell phones, but until the Supreme Court rules on this the Judicial system will continue to see saw on this issue. I still think we better be getting warrants. When you think about it…Why not get one?

 
Posted : 07/01/2011 1:49 pm
mwp2008
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I think people are over reacting to this just a little bit. I went through the academy thirty-five years ago and this is really no different than what was taught then.

In California, a peace officer can search a suspect incident to arrest provided 1) the arrest is made based on actual probable cause (not something invented), 2.) …and this is important… for evidence or instrumentalities of the crime and 3.) more or less contemporaneous with the arrest.

For example, the police stop a vehicle on suspicion of involvement in a liquor store robbery. They develop sufficient probable cause to make an arrest (I'm not going to layout the entire investigative process, but let's assume there is sufficient probable cause.) Based on the right to search incident to arrest, they could then search the suspects' person and the interior of the vehicle for evidence or instrumentalities of the crime. For example, a ski mask and gun in the car, or a wad of money including receipts from the liquor store in the suspect's front pants pocket.

Looking through the cell phone contents of a suspect arrested for street level drug sales incident to his arrest is not that great of leap in logic from long established CA legal principle…as the CA Supreme Court seems to think. For street level drug sales, I think a cell phone can easily be seen as a tool of the trade.

Issue number two pretty much does away with hcso1510's scenario "How about arresting a guy for public drunk and looking through his computer and finding CP?" If you're searching for evidence or instrumentalities of the crime of public intoxication, I can see going through a backpack looking for a bottle. I think it's almost impossible to justify going through the digital contents of a laptop in the backpack. What are you going to do, look through the Internet history for searches for local liquor stores?

My bottom line… it's not a long stretch of logic from existing case law, in California at least. You can bet that defense attorneys are going to be looking carefully at any case involving similar circumstances to refine the law even further. And as has been noted before, considering contradictory opinions in other states, this probably isn't going to be over until the fat lady sings. The fat lady being the US Supreme Court.

And by the way, I don’t think that “Supreme Court of Ohio went just the opposite direction. "Warrantless Search of Cell Phone Data Barred Unless Necessary for Officer’s Safety or to Preserve Evidence" is quite correct. The reason why California law has consistently held that search incident to arrest was permissible was precisely for these two reasons, officer safety or the preservation of evidence. Obviously the state's attorneys in Ohio didn't make a strong enough case for the ephemeral nature of evidence contained on a cell phone.

M. W. "Bill" Picone, EnCE
Riverside, California

 
Posted : 08/01/2011 2:44 am
hcso1510
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Bill,
My public drunk scenario was reaching, but I once heard that to demonstrate the absurd one must be absurd. That being said I also believe if the lap top in the back pack was immediately associated with my person that might put it in play regardless of how reaching it might be.

I fully understand the officer safety concerns. Diaz makes reference to a case where a cell phone was searched due to an officer safety issue, but I can’t seem to think of many scenarios where the phone itself would pose a threat to an officer?

What about preserving evidence? Now I’m assuming this will be phone specific, but if my phone is full with text messages I don’t believe I can open up a message unless I delete one? Talk to any Narcotics officer and I’m sure they will tell you that the SMS that just rolled off the phone held the location of Jimmy Hoffa’s body or had the tag number of a tractor trailer with an ounce of weed and a million dollars in it.

If we are so worried about losing evidence why not turn the phone off? Using the same Chicken Little mentality as in the Hoffa reasoning one could say that someone is just about to send a kill code to the phone and wipe all the data. Ok. Turn the phone off.

If someone is worried if they shut the phone off it will activate the unbreakable pass code from hell….then they need to secure the phone, plug it into a power supply and store it in a faraday bag or aluminum foil?

Fortunately from time to time laws change. Not because they were bad, but because they need to evolve as society does. Many of the laws we are talking about were in existence long before cell phones were invented.

Hopefully the high court will get us a decision sooner than later.

 
Posted : 08/01/2011 8:45 am
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