By Joe Levi | January 5, 2011 1:12 PM
Sometimes different areas of my life overlap. It’s not a common happenstance, but on occasion those worlds collide. In this case it’s my role as pocketnow’s “Android Guy” and the political offices that I hold. This time the overlap is vitally important to every smartphone user.
In the United States we have a specific, enumerated Rights. These Rights are outlined in the first ten Amendments to our Constitution. Amendment Four and Five carry a lot of weight, and provide a lot of protections to persons in the United States. In case you’re unfamiliar with them, I’ll include them at the bottom of this article.
A recent case from California ruled that Police do not need a warrant to search the cell phone of someone they’ve arrested. What actually happened in this particular case? A person (Diaz) was arrested (on probable cause) and taken into custody. Once in custody the Police searched Diaz’ cell phone and read his text messages, which provided further evidence against him. He argued that because no warrant had been issued to search his cell phone, any evidence gathered from that source was inadmissible in court. The Court disagreed.
“The cell phone was an item (of personal property) on (Diaz’s) person at the time of his arrest and during the administrative processing at the police station. <...> Because the cell phone was immediately associated with defendant’s person, (police were) entitled to inspect its contents without a warrant.”
In the past, a person’s loss of privacy when arrested applied only to the arrestee’s body. The California Supreme Court decided that loss of privacy now extends to include personal property. According to Mark Rasch, former head of the Justice Department’s computer crime unit, by applying the “personal property on the defendant’s person” standard, the ruling could logically extend to tablets or even laptop computers.
Jonathan Turley, a Constitutional law expert at George Washington University, made the following observation: “While the Framers
Is obtaining a warranty really that hard? In the context of a legitimately executed arrest, no, it isn’t difficult for Police to obtain a warrant to search an individual’s personal effects. Doing so provides the citizen with a layer of protection provided by separation of powers between law enforcement and the judiciary. When applied to the general population, this protection is necessary to keep a “Police State” at bay.
Luckily this ruling only applies to persons in California. A similar case was heard in Ohio in 2009 wherein the Ohio Supreme Court found that Police do not have the power to search a person’s cell phone — not without a warrant.
California Deputy Attorney General Victoria Wilson, who represented the prosecution in the California case, later made the comment that the differing decisions in California and Ohio could ultimately land in the hands of the U.S. Supreme Court to finally decide.
In the meantime, if you’re arrested in California (simply arrested, even if you’re released or found innocent), your cell phone and other electronic property are subject to search without a warrant. To protect yourself it might be advisable to apply encryption and password protection to your devices. Police may compel you to provide your passwords, but in the United States you still have the Right to remain silent and the protection of self-incrimination provided by the Fifth Amendment.
What do you think? Should Police have the ability to search your electronic devices if you’re arrested or detained? Should a warrant be required to do so? Should you be required to give up your passwords to “assist in an investigation”? Are you more or less likely to travel to California given this ruling?
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
No person <...> shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law <...>