Can police search your phone on arrest? Privacy groups urge U.S. Supreme Court to say ‘no’

“Ever since the US Supreme Court announced in mid-January that it agreed to hear two companion cases involving warrantless searches and seizures of cell phones, the privacy world has been abuzz,” Joe Silver reports for Ars Technica. “Yesterday, several prominent privacy groups filed briefs telling the court why it should stop cops from making easy, no-warrant phone searches.”

“Previously, courts have held that when officers place individuals under arrest, the police are permitted to search the suspects’ “persons and effects,” and the fruits of such searches are admissible evidence in courts,” Silver reports. “But modern cell phones enable access to a wealth of personal data, the large majority of which is likely unrelated to the government’s reason for arresting someone. This technological reality arguably results in the expansion of the intrusiveness of a routine search that would previously only reveal what someone is carrying on his or her physical person.”

“A number of advocacy organizations have felt the need to voice their opinions on what they see as the various ways that materials accessed from cloud-based cell phones with strong computing capacities potentially unsettle established Fourth Amendment precedent,” Silver reports. “Eleven briefs in support of petitioner Riley’s case have been filed to date, including by the American Library Association/Internet Archive, the Electronic Frontier Foundation, The American Civil Liberties Union, and the Electronic Privacy Information Center (EPIC).”

Read more in the full article here.

MacDailyNews Note: United States Constitution, Amendment IV:

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.

38 Comments

  1. When under arrest, the law right now is yes.. But you have to have committed a crime to begin with.

    Always lock phone with a code/pass.

    Slippery slope though.
    On one hand a kidnapper gets arrested you want to know everything, including what’s on his phone.

    A guy gets a DUI.. Not needed.

    1. @backlash

      ….but if they are arrested because of being a suspect in a kidnapping, then it shouldn’t be too difficult to get a legal search warrant. So it is not such a slippery slope after all.

      Our rights must be protected or we become a police state, and I would rather take the risk of being kidnapped and not having someones phone searched “fast enough” than put all of my liberties at risk and risk becoming a nazi state.

      As was said: “Those who would give up liberty for security deserve neither.”

      1. If your child was kidnapped by a rapist would you feel the same way? If finding her faster and possibly alive just took a phone search? Beats finding a body later.

        1. @MacRaven

          If the police have the person already in custody on suspicion of kidnap, then it is already too late or he can’t do any more harm. If there is reason to believe this is the person, then he likely won’t be released until a search warrant is issued.

          I believe the existing process of the law was well thought out. We don’t need nazi rules to keep us safe.

      1. And in some suspicious cases, that may be a good thing. And if your phone has nothing on it, then all you have is a minor j-walking charge. But I’ll bet if you were arrested for j-walking and your phone was demanded, there was a lot more going on that the officer was suspicious about. I’d have no fear of them searching my phone any time, and yes I’ve j-walked and still do so it’s possible.

        1. The problem here is that you assume that if someone has something to hide then they are guilty.

          The problem is not necessarily the current situation, but that it gives power to a potential police state. What if peaceful demonstrators are labeled “terrorists” and anyone who calls one is suspected and incarcerated or intimidated? The an innocent phone call becomes evidence.

          Or even today. What if it happens (unknown to you) that your cousin deals drugs, or some other crime. Your innocent text to him “Good luck” could mean an interrogation.

          The constitution guarantees us freedom from self-incrimination and unreasonable search. Do you want to throw that out?

          1. With the world the way it is today. Yes, I am willing to bend that a bit. I see a lot of “seeding” of this country and others what very well could be sleeper cells. Waiting for numbers to be in their favor to start real trouble here. France is an example, I’ve read there are places in France that police are afraid to go. The world is not what it was. We don’t fight visible armies we fight invisible invaiders who do their best to blend into society until the opportunity presents itself. Is that in 5 years? 10? 20? Don’t know but I predict it will happen.

            1. The police state is here. The U.S. government targets and harasses peaceful activists merely because they disagree with the policies of those in power. THAT is “the world the way it is today.” We are in a LOT more danger from powerful governments and the corporations that control them than we are from fellow individual humans.

      2. I rarely even log in to MDN.. so just now seeing this and most likely nobody will ever see it, but oh well.

        Jay walking is a TICKET-ABLE offense not an ARREST-ABLE offense.
        When you get a TICKET for something.. IF they have reason to do a more extensive search, they can ask for permission. confiscating any and ALL belonging ON YOUR PERSON is legal when under arrest. In your vehicle can be as well.

        1. Backlash

          While you are probably correct re Jaywalking, my point is that an officer can always find an excuse for an arrest if he wants to. It does not even have to hold up. Arrest, take into custody, release without charges.

          There are a lot of other scenarios where access to the phone could be abused. Imagine small towns where embarrassing info could be used to humiliate someone. The possibilities are endless.

          This is why the founding fathers wanted to protect citizens from unreasonable search – not particularly to protect the guilty.

          1. I understand, but a LEO can’t just make any excuse to arrest someone.

            “Arrest, take into custody, release without charges.” This leads to lawsuit and the rest of the arresting officers arrests, and the department under higher scrutiny.

            A phone is NO different than a piece of paper in your pocket, when you are placed under arrest.. it’s fair game to look at it. People are making a big deal over this because it’s a phone.. That people store insane amounts of personal data on. If phones could only store phone numbers (like they used to only do) nobody would care, but now people have decided to put their entire life on a phone..

            Trust me, no LEO will purposely arrest someone under false circumstances JUST to look at their phone’s contents..

            “There are a lot of other scenarios where access to the phone could be abused. Imagine small towns where embarrassing info could be used to humiliate someone.”
            If a LEO goes through your phone’s contents.. odds are they are looking at specific info. phone numbers, contacts etc. not looking for info to humiliate someone.

            Use a lock code on your phone, always ask “Am I under Arrest?” if any LEO asks for your phone/etc. If you are under arrest for any reason, and your phone should be locked.. don’t give up the lock code. Talk with your lawyer and make them get the code through legal means.
            IF you do give them the code.. or your phone is unlocked/unprotected then anything they get legally is usable.

            1. Well – I disagree. A smartphone is NOT like a piece of paper. It is more like your office and includes access to items that are stored elsewhere – like most of your emails.

              I wanna get the bad guys as much as anyone, but the whole purpose of constitutional rights is to protect from abuse. Power WILL be abused once given and is very hard to get back.

            2. I was just using the paper as an example.
              the point is “anything on your person” it doesn’t matter if you are carrying a smartphone.. or a piece of paper.

              If the law is for example “a piece of paper” is excluded… guess what every criminal will carry?

              I understand and agree with you on the 4th etc, but you can’t make exceptions for personal reasons..
              The law right now is fine, nothing is excluded. Any item on your person is fair game, including a phone. If it’s locked with a passcode they need a court order to unlock it. They *can* ask you to unlock it.. but don’t be stupid. If they are legally allowed to look at the contents, a court order will be easily obtained.

              What the article is about is changing the law to exclude certain items.. This is the problem.

              Lock your phone, then the only legal way for any LEO to get to look at your phone/contents is a court order. If you have corporate emails/data you NEED to keep from prying eyes.. don’t leave your phone unlocked or unsecured to begin with. Thats on YOU not anyone else.

              “Power WILL be abused once given and is very hard to get back.”

              Exactly, and when you CHANGE the law to exclude a smartphone, you are also giving the criminal element among us a way to hide their behavior. YOU may not like the thought of a LEO looking at your phone.. but so does a thief/kidnapper/murderer. If you have nothing to hide, and are smart enough to use a lock code on your phone… I say again the only *legal* way for LE to view your phone.. is through a court order. And they do have to have reason to look at it. When they go to a judge asking to look at the contents “just because” won’t cut it.

    1. Oh, and friends: train your 5s to recognize only a nonstandard fingerprint, like your left ring finger in a goofy orientation, NOT your right thumb, in case the po-po tries to forcibly hold your thumb against your fingerprint sensor. Or use other non-digit body parts 🙂

  2. Warning – police do illegal shit all the fucking time. If they really want to see what’s on your phone, they will take your phone and look at it. If you say something to them like, “This search of my private property is illegal under Amendment IV of Constitution of the United States, and I’m under no obligation to provide my password or thumbprint to unlock it unless you have a court order”, then the cops will proceed to brutally beat you, and lie and coerce you and do whatever else necessary to force you to unlock your phone. The fact that it was illegal will only matter after the fact – if you are lucky enough to get a good lawyer and your day in court, the illegal police conduct you were subjected to might help exonerate you.

  3. I think they should be required to get a warrant. Here’s the thing, the person is already arrested, so they’re not going anywhere. Why not present to a judge exactly what’s being looked for and why. When police arrest people on the street and find a key to their house they can’t go over to their house and go through everything. This isn’t much different.

    And for those think that passcodes protect you… nope, there are tools that law enforcement has that bypasses this.

  4. Since 9-11, police forces have turned into paramilitary forces. They can do pretty much anything they want to. They can beat you to within an inch of your life, and blame you for resisting arrest. Even if it’s caught on tape, the perpetrator just go on paid leave until things die down.

  5. Mmmm popcorn munching topic. Sure the police can police search your phone on arrest if you are carrying it on you and add the additional charge of carrying a concealed weapon. That’s the hardware part. For the software part, well sure why not, that is if you are living in a terrorist nation like say the U.S. but free worlders and people living in countries where their respective constitutions are valued more than toilet paper should not worry about that too much.

    By the way, love the feedback on this topic, Backlash nice perspective, Derek always the idealist, thumbs up for that. Chief Black Kettle you sound really realistic and I have no doubt that’s what it must be like living in the terrorist United Hates these days.

    DanoX, that’s going to be a good one. I imagine the scenario, someone getting arrested for something and police want to examine the iPhone but it’s password protected. I wonder will be more appealing, sending the person to say 6 months at Guantanamo Bay where he can be tortured or force the person’s fingers onto the iPhone and use them to unlock it.

    I’d go for the latter myself, especially if the Gestapo, uh police get kickbacks from doctors for fixing broken fingers.

    Ah the empire falling into decay, great entertainment, and what about that popcorn….yummy.

      1. Yeah probably and just saying. Come back when you can be definitely saying and focus on the topic in lieu of distracting the issue by attempting to insult the messenger.

        1. Road Warrior, what’s your problem? I don’t live in the US nor am I an American by nationality, but your unwarranted attack on the US and Americans in general is inaccurate and just ridiculous. Why do you feel the need to come here and spew your bile? Oh, that’s right, TROLL.

          1. Road Warrior, what’s your problem? I don’t live in the US nor am I an American by nationality, but your unwarranted attack on the US and Americans in general is inaccurate and just ridiculous. Why do you feel the need to come here and spew your bile? Oh, that’s right, TROLL.

          2. Just expressing my freedom of speech. I find the idea of an unwarranted attack to be definitely inaccurate and ridiculous indeed. More of a defense against:
            -An illegal intrusion into Iran on false pretenses.
            – Torture.
            – Treatment Guantanamo Bay
            – Level of spying, commercial espionage by their government, sabotage by their government.

            Those are the recent atrocities. Not spewing bile, heck I’d love the Americans to regain their backbone and moral integrity. Just calling it like I see it.

            I’m not the only one either. There are other people that have made some posts in that regard, but by all means if you consider that to be a troll, then go ahead. I’d rather be a troll than a terroristic American, or worse…..

            1. I’ve tried to address the issues you brought forth in your post and that’s the best you can do?

              All right, perhaps if I post something to your level we can work up from there.

              Troll feeder.

              Shall add a patronizing infantile smile your direction?

  6. “Just expressing my freedom of speech” – the defence of the feeble-minded. When you come to a forum and express opinions which you know are antagonistic to the majority of people on said forum, that is troll behaviour by any definition. Calling the US a “terrorist nation” is not just plain wrong, it is designed by you to be antagonistic. TROLL.

    1. Wow, that’s amazing. You may your opinion and that’s fine you are expression it. I have mine. The U.S. is a terrorist nation that is a threat to the free world. It has clearly demonstrated this time and time again in the last 10 years. I’ve laid some of the points why. You have not addressed a single one, instead you’ve decided to attack the messenger.

      If you think that say torture is the behavior of a modern day civilized nation fine. Frankly I believe that this behavior, along with the other points I’ve listed are indicators of terrorism so I’m calling it like I see it. There are many good Americans that see it to and are wondering what is happening to their country. I hope they do something about it, but until they do, my view stands and feeble minded as it appears to you, I will express it.

      Thanks to you, I’m expressing it a lot more, so go ahead with the name calling, what you label me as does not bother me, it sure beats being a terrorist.

  7. I’m fine with Phone searches. If there is someone involved in or suspected of drug crimes, child pornography, terrorism, or otherI want every means possible available to investigators. It could either help convict the person or if nothing found support clearing the person.

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