U.S. court ruling opens phones to warrantless searches

“Cell phone users might think that their phones can’t be searched without a warrant any more than their homes can be,” Andy Greenberg reports for Forbes. “But one judge just gave cops engaging in warrantless cell phone searches a foot in the door.”

“Judge Richard Posner of the seventh circuit court of appeals ruled Wednesday that the question of cell phone searches isn’t whether law enforcement can open a phone and start snooping on its information without a warrant, but only how deep their warrantless search can go,” Greenberg reports. “In the appealed case, an Indiana man was arrested at a methamphetamine bust with one cell phone on his person and two more in his truck. Police turned on those phones and checked them for their numbers without obtaining a warrant, then used the numbers to file subpoenas to the carriers for the phones’ call histories. The searches went only as deep as gathering the phones’ numbers, but the defendant appealed his conviction based on what his lawyers argued was an unlawful search that generated evidence against him.”

Greenberg reports, “Posner acknowledged that a deeper search of a cellphone could be considered intrusive. He cited an iPhone app called iCam that allows a user to access surveillance cameras in his own home, essentially linking a deeper cellphone search to a home search. But he argued that simply checking a phone for its number doesn’t go far enough to raise questions of intrusions of privacy.”

Read more in the full article, which includes the full ruling, here.

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26 Comments

    1. I think that it is sad to see how many of you will rush to protect criminals from having to reveal their phone numbers so that the police won’t be able to stop them from harming us.

      If the police abuse this type of search, we need to bring them to justice too.

      1. The criminals are citizens also, innocent until proven guilty. Taking away their rights (pre-charges and conviction) diminishes and erodes the rights of everyone.

        The law enforcement officials at all levels have gained unprecedented power since 9/11, and all the the small cost of just about negating the rights given to us by the constitution.

      2. It’s sad that you think shitting on the values the USA was founded on and vigorously wiping your ass with the Constitution is justifiable as long as it’s done in the name of “protecting us from criminals”.

        You know, there’s already a way for police to search a criminal’s cellphone. It’s called getting a warrant. It’s part of that whole “due process” thing.

        But I guess due process isn’t in vogue anymore. Oh well, ain’t like it was ever there for any good reason, right?

      3. I think that it is sad to see how many of you will rush to protect criminals

        Two problems with your statement:
        1) Innocent Until Proven Guilty
        2) Getting an actual WARRANT is NOT a dire or difficult event.

        Get the warrant,
        THEN search the phone.
        That’s the law.
        Police uphold the law,
        they don’t break the law.

        Deal with the law or go to jail.
        That includes the police.
        Laziness ≠ an excuse for lawlessness.

        With all due respect:
        FSCK you judge Posner,
        legal illiterate. 😛

    2. +1.

      I haven’t read Posner’s opinion, but search cases frequently come down to whether the individual had a ‘reasonable expectation of privacy.’ If so, that would prevent police from conducting the search.

      If the defendant didn’t lock his phone, any passer-by could have looked at the same information the police officer saw.

      Using a passcode lock (w/immediate lock) would presumably create an expectation of privacy and make the phone’s contents off-limits.

      1. While I’m on the side of “right to privacy” I will point out that there was a recent case where a defendant had to provide police with the password she used to encrypt her hard drive, so password/locking doesn’t seem to deter the cops at all.

        1. There’s another recent case where the Court of Appeals for the 11th Circuit said exactly the opposite.
          http://www.engadget.com/2012/02/26/court-upholds-fifth-amendment-prevents-forced-decryption-of-dat/

          In the case you’re talking about, it wasn’t the cops who forced the defendant to decrypt the disk, it was a court. It’s very easy not to decrypt something for police, especially since you shouldn’t be talking to them without a lawyer in the first place. Remember, if the police want to talk to you, there’s a good chance they’re going to find something that you’ve done wrong, or that will look to a jury like you’ve done wrong.

          Hopefully if this goes to the US Supreme Court, they’ll get it right – being forced to type in a passphrase is being forced to testify and provide evidence against yourself.

          Follow-up on the talking to police thing: Here’s a hypothetical scenario (that is not at all unlikely) of where telling the truth could get someone in trouble. Let’s say a store gets robbed, and police for some reason talk to Bob, even though they don’t think it likely he was involved. Bob knows that he was at his mother’s house, a 4-hour drive away. He tells the police that, thinking he is being helpful and thinking the truth can’t hurt him. Later, the police happen to show his picture to Sue, and she believes (mistakenly, but she really believes she’s right) that she saw Bob a block away from the store, just after it was robbed. Whoa! Now the police REALLY suspect Bob, since they think they found out he was lying about being far away. And, they have a credible witness who will testify in court that Bob was near the scene. A police officer will then testify that Bob told them he was far away. His mother will testify he was with her – how do you think the jury will view mom sticking up for Bob? Think they’ll believe mom isn’t lying to save her son? The prosecutor will say “Why would Bob lie about where he was, unless he was the robber?” A jury will probably think “good point,” and convict Bob. If Bob had just kept his mouth shut, the police might never have bothered checking his story out to see if they could catch him in a lie. Who knows, if they weren’t distracted by thinking they caught him lying, they might have found the ACTUAL criminal.

            1. The only problem with your little story is that if Bob had told the police that he wasn’t going to talk to them without a lawyer, it would have made him more of a suspect.

  1. Chilling how the reach of “big brother” gets longer and longer.

    Posner is considered by some a brilliant jurist. Yet he’s noted for a tendency to sometimes reach rather outrageous conclusions. He was nominated back in the 80’s to the Federal Appeals Circuit Courts by Ronald Reagan.

    1. It’s called the ‘Fifth Ammendment’.

      It’s also called ‘Illegal search and seizure’.

      It’s also called ‘innocent until proven guilty’.

      If you think it’s alright for others’ rights to be trampled upon, don’t complain when it starts happening to you.

      1. • “An injustice anywhere is an injustice everywhere.” — Samuel Johnson
        • “The strictest law sometimes becomes the severest injustice.” — Benjamin Franklin
        • “There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest.” — Elie Wiesel
        • “Of all injustice, that is the greatest which goes under the name of law; and of all sorts of tyranny the forcing of the letter of the law against the equity, is the most insupportable” — L. Estrange
        • “Injustice anywhere is a threat to justice everywhere.” — Martin Luther King Jr.
        • “Find out just what any people will quietly submit to and you have the exact measure of the injustice and wrong which will be imposed on them.” — Frederick Douglass
        • “If you are neutral in situations of injustice, you have chosen the side of the oppressor.” — Desmond Tutu

  2. wow.
    viva democracy!
    don’t you love it?!
    freedom my ass.

    there is NO ideal form of governing.
    even democracy is full of flaws.
    but worse: you hide behind corruption & abuse of the law.
    whereas more tyrannical forms of government, well, at least you know where you stand. you expect it. you don’t take so much b.s. with a straight face.

    to hail democracy as freedom whilst police-stating us, that is hypocrisy & a crime in itself.

    the Big Question is:
    who the hell are the police & gov. protecting, really, in the end? they only open cans of worms, pandoras boxes, hatred, rebellion, piracy. did they not learn this from Vietnam, Prohibition, and throughout history of human colonization of every kind?!

    the Big Irony is, those politicians who support cronyism would not tolerate it when they are tapped or their kids are bullied, right?! they’re not the ones who sacrifice their kids in wars.

    Democracy’s problem:
    there’s no discipline.
    anything goes.
    everything is acceptable.

    by the looks of it, from this new law and before,
    taxing (screwing) us to death & still have the audacity to spit on use more & treating us like the whores that we are, by misuse of our hard-earned money on wars & bailouts we do not consent to…

    their moral is to invent wars, kill innocent women & kids abroad just to keep the $ as a world currency, using oil as an excuse, when we have more oil under the usa than anyone. yet we find it repulsive on the moral scale when Clinton gets a blow job?! at least he did his job, but since our country has nearly disappeared in Roman-like decadence.

    Christ – is there any hope for human fear & stupidity?

    1. It’s not about Democracy. It’s about Constitutional fealty. Big difference.

      What your witnessing in the US is a struggle between big-gov’t statists (people that think gov’t should control everything ‘for our own good’ because we’re too damned stupid: Dems, Repubs, Indep… doesn’t matter) and Constitutionalists that want gov’t to leave everyone the fsck alone and stick to the rules.

      That’s why ‘democracy’ in most countries doesn’t work. They don’t have our Constitution. The US gov’t wants to tell you what it will do *for* you; the Constitution is there to tell the gov’t what it can’t do *to* you.

      The US Founding Fathers put specific checks in place in an attempt to control statists and tyrants. Our elected officials *fail* the people when they seek their own agendas and abandon the Constitution. They need to be rooted like a weed.

      1. yes, you’re right.
        what we now have is not democracy from our founding dads.
        but any system can be abused and is.

        what is constitutional about one’s rights being raped by any gov.? they can argue they are right all they want i.e. tax bailout but look how Ford proved the industry wrong – that you don’t need abuse people’s money to survive etc.

        in germany they perfectly blend democracy & socialism. socialism is not communism. big difference as you say. but we americans fear the unknown. we’re so quick to judge other cultures & pretend, despite us being so young as a nation, that we know best, when our current form of freedom is not to be policed around the world, since we have no f’g clue what its definition is. we have less freedom than most countries incl. some tyrannies, as we’re watched, heard, controlled more than anywhere. then we add SOPA, now warrantless search. what’s next?

        our problem, and why we’re ruining ourselves, is that we live in constant fear, paranoia. whenever someone complains about this extremism, we’re automatically labeled unpatriotic, when in fact, the fact that we worry how far we stretched away from our founding father’s ideals, makes us more patriotic. it’s ironic. but very sad.

        since there’s no perfect government form as much as there aren’t any perfect religions, as they all go to dogmatic extremes, why do humans not opt to live without any control – we tried for 4000 years and nada has worked – so let’s try something else, instead of keep banging our heads on the wall.

        enough!

        real freedom is to live & let live. not fear. not control. just be. there is not reason for anarchy either, as common human decency would rule.

        chaos, terrorism, famine, violence, hunger, homelessness etc. has always grown out of governing abuse, not decent folk.

        it is not liberal to think that way. because it’s natural. nature is not phony, not ideal. it just is.

        one can expound on this theory, but there’s no space here.

        let it be.
        as much as there is not Devil without a God, as they’re not mutually exclusive, there’s not Peace as long as there’s a Government…

  3. It’s time to perp walk a few Judges, DAs and Police to a classroom to teach them a few things:

    1- Law enforcement must FIRST be law abiding.
    2- The Bill of Rights is not negotiable- even for Republicans.
    3- The citizenry created the government, grants it it’s authority (consent of the governed), pays the effing bills and has just about had enough with the police state that has been creeping upon us since the 1980’s War on Drugs.

    Keep your passports handy, boys and girls. The national security state is becoming ever more intrusive and more callous to citizen rights.

    1. “Keep your passports handy, boys and girls. The national security state is becoming ever more intrusive and more callous to citizen rights.”

      Well, yeah, fine, but, seriously, where ya gonna go?

  4. UNCONSTITUTIONAL:

    one judge just gave cops engaging in warrantless cell phone searches a foot in the door.”

    Illegal search and seizure attack! What a wonderful world of loons. Don’t you LOVE it when your government abuses you?

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