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Discussion in 'Android News' started by dgstorm, Jan 4, 2011.
tappin and a talkin
Well, and unless the cop is a real jerk the subpoeana is probably not worth his effort. He might up the ante and say "well you can come with me downtown then" and I suspect your privacy isn't worth 2 hours of your time.
I imagine the SC will strike this down. I've not heard, nor can I imagine, a cop pulling someone over or arresting them and then combing thru their computer files. Not sure why a smartphone would be any different. Just like if you have a warrant for my computer I don't think you can peruse my financial info on there unless the warrant specifically includes financial records.
Not all tools are large immobile monstrosities permanently bolted to the floor of some sterile lab. The Droid I carry everyday has more computing power than the entire first space shuttle, yet it is very small and portable. I'll leave it at that.
Also consider this: Say the officer would have to complete the search off site at a later time, which is usually the case. The term "immediate search" also falls under the "reasonableness" standard. The courts could rule that in the case of a cell phone, "immediate" could include the time it takes to take the item to have the lock bypassed and then search it. Remember, you are under arrest at this point, and all of your personal property is being taken and logged into property, including your cell phone.
Another question that comes into play in this situation, is the reasonable person's expectation of privacy for the contents of their phone. I want someone going through my car no more than I want them going through my house, yet, my level of expectation of privacy in my vehicle (in the Court's eyes) is less than that of in my house. This is because your car is mobile, is surrounded by see-through glass, is operated in public areas, etc..
These are just a couple of the many considerations when making a ruling like this, which is why these things are not as cut and dry, us vs. them, as people tend to believe them to be. The Courts have a difficult job of balancing the rights guaranteed to the People in a document written by men who never dreamed of it applying to anything like a cell phone or a car, and also still allowing police to do their jobs, which in turn protects the rights of the victims of the crimes they are investigating.
This is an issue that will change and adapt with the times, as it always has.
And I didn't mean "naive" as an insult, and hope you didn't take it that way.
Actually I am stubborn as an ox (as some of you may have noticed) and so my privacy would be worth a lot more than 2 hours wasted lol. I tend to dig my heels in.
tappin and a talkin
I agree with one caveat. It is not unreasonable, nor hard to articulate given training and experience, that dealers and users alike utilize their cell phones to further their criminal exploits, whether it be buying, transporting, or selling the drugs or contraband. So it is very reasonable to believe that the phone might contain further evidence. Just like a warrantless search of the passenger compartment of your car incident to arrest. It is reasonable and justified to believe that since people use vehicle to transport themselves and their contraband, that the car might contain evidence of the crime. The subject is already under arrest, and the car can be towed, but the Court has ruled that search incident to arrest is still not an unreasonable search.
I see both sides of this, I genuinely do. And I don't envy the guys (and gals) making the rulings. I'll be interested to see what the outcome is, for sure.
Lol who lied to you....
I think I've been in my fair shares of pull overs... If your glove dept is unlocked they dont need warrant to search it, but let it be the other way around and its locked they need a warrant. So what would make a cellphone any diff? Know your Rights people...
Plus I'd just play dumb, "Sorry sir, I was just on my way to verizon as i've seem to forgot my password" What are they gonna say? Ok lets go together? Lmao....
This I know, however imagine the fact that any tool they would carry with them would have to be capable of unlocking phones accross operating systems and manufacturers. If such a tool exists I would be quite surprised and even then given the grand scheme of things I don't think the average police department would bother to have more than a few of these devices. At the very least if someone is going to pry in to my personal property without my wishes or a legal document asserting their right, I am going to make them work for it. Call me a dissident I guess.
And no I was not offended by the naive comment.
tappin and a talkin
I haven't read the case, so forgive me if I missed something. The only way Plain View would apply here is if the officer saw evidence on the phone while it was in plain view (i.e. sees the suspect typing/reading a text message that contains information of an evidentiary value). OR if the phone itself was evidence (stolen property) and it was found in plain view.
If I missed something, let me know. I'm very interested in these rulings.
Password protect all you want but if you backup your sms, mms, and email its all on the sd card. That includes all pics you take. All they have to do is pull the sd card and plug it into a pc.
Sent from a galaxy far far away.....
LOL. And you are correct. Like I said, usually, to do that, it would need to be taken somewhere else. Having the financial resources to keep up with technology is a growing problem with police departments of all sizes.
And depending on the Court's ruling, they may or may not need a "legal document" to assert their right to search.
Also remember, 99.9% of officers are not trying to violate your rights for the fun of it. The ability to temporarily remove someones rights, against their will, is a grave responsibility. Most cops take it very seriously. They are also human, and make mistakes, misjudgments, and misunderstandings. You think keeping up with cell phone technology is hard, try keeping up with case law that changes (sometimes quite drastically) on a regular basis. Cops are genuinely doing a job that most people will not or can not do. They don't really care what you texted to your girlfriend about your wife, unless it contains evidence of a crime they can solve.
As to cops having a tough job in the 21st Century - they do, but the last time I looked, police departments are 100% staffed with volunteers. No one is forced to become a law enforcement officer against their will.
As I said, I'm a product of the Sixties...
You took my comment out of context. I'm sorry if you misunderstood it. I did not mean that anyone was FORCED to do police work. I wouldn't want to work with, or be protected by the guy who is FORCED to do it. Makes it no less challenging. Its an extremely challenging career for several reasons, but is also very fun, and ultimately rewarding. I'm sorry if you've had some encounter with law enforcement that has jaded you. It can't be JUST the Sixties, as I know several products of the Sixties, and they are as individual in their beliefs and views as products from any other decade.