Can U.S. police search your iPhone without a warrant?

“Say you’re arrested for possessing a marijuana cigarette in a state where that’s still illegal,” Roger Parloff writes for CNNMoney. “Can the arresting officer, without a warrant, riffle through your Apple iPhone or Google Android with impunity, inspecting, say, 16 gigabytes worth of emails, text messages, contacts, calendars, photos, videos, and GPS records of your comings-and-goings?”

“That’s the bottom-line question permeating two cases being heard by the U.S. Supreme Court on Tuesday — one involving the prosecution of a California man for a gang-related shooting and the other, a federal case against a Boston man for selling crack cocaine,” Parloff writes. “Since 2011, the California Supreme Court has greenlighted broad warrantless cellphone searches “incident to an arrest,” while a split panel of the U.S. Court of Appeals for the First Circuit — which hears federal cases from Maine, Massachusetts, Puerto Rico, and Rhode Island—categorically forbade such searches last May. The Court will apparently be resolving this conflict before its current term ends in late June.”

“Since the country’s founding, an arresting officer has traditionally been permitted to search and inspect, without a warrant, anything found on the arrestee’s person, even if that meant opening closed envelopes and containers, and flipping through the accused’s notebooks, datebooks or wallets—all containing private information that does not differ in kind from what is now stored on cellphones,” Parloff writes. “But attorneys for the two defendants in these two cases—backed by numerous constitutional and civil liberties groups, ranging from the progressive American Civil Liberties Union to the libertarian Cato Institute—argue that the traditional rule needs to be revised in light of the massive storage capacity of modern digital devices and the extraordinary sensitivity of the private data citizens now routinely store there. ‘Technology now makes it possible for individuals to carry huge quantities of information with them every day,’ write Yale Law School professor Eugene Fidell and private attorney Andrew Pincus in a brief they’ve co-authored by the Center for Democracy and Technology and the Electronic Frontier Foundation. ‘Prior to the advent of digital technology, this information would have been stored in the drawers and file cabinets of people’s homes,’ they write. ‘Law enforcement officers would have been required to obtain a warrant in order to search such materials.'”

Much more in the full article here.

[Thanks to MacDailyNews readers too numerous to mention individually for the heads up.]

94 Comments

      1. I am pretty sure when George Bush was President he was responsible for the actions of the NSA and all the Federal bureaucracy. Obama has indicated he “will enforce the laws he chooses to enforce”. So, you are full of crap. Obama is the President. That is where the accountability lies unless he has done everything possible to stop this. Which he hasn’t.

        1. You’re both right. The law enforcement is part of the executive branch (under direction of the President). Obama (or Bush or whoever is next) can order the NSA, FBI, etc… to tap and such, but the judicial branch (ultimately the Supreme Court) can say whether or not those orders violate law or the constitution.

          In other words, the President can order Federal law enforcement to never search an iPhone without a warrant, but that order could change with the next President. The President could do the opposite and say that he wants the Feds to search every iPhone without a warrant, and it’s up to the courts to decide whether or not that’s a violation of law or the Constitution.

          Congress could pass a law banning the feds from searching iPhones without a warrant, but if they passed a law allowing searching of iPhones without a warrant, that law could be challenged in court, and furthermore, not enforced by orders of the President.

          The bottom line, is if you don’t like the power the government law enforcement has, blame the President for what happens during their term, blame Congress for not passing laws restricting power, and blame the courts for not upholding the Constitution.

          1. No president can order unconstitutional searches (although Obama thinks he can).
            Presidents are required to faithfully execute the laws (although Obama doesn’t think he has to).
            The Constitution and the laws are already there. It shouldn’t take a court to uphold them. That is only necessary when one branch of government (e.g. executive) becomes lawless.

            1. You just made an ideological argument to my comment based on process and practicality.

              No president can order unconstitutional searches (although Obama thinks he can).

              You essentially just said the president can’t, but Obama does. The president has the ability to issue executive orders period. The constitutionality of those orders are interpreted by the courts. The President, hypothetically could issue an executive order declaring a genocide. Obviously unconstitutional, but he could go through the process of issuing that executive order. Not being constitutional, it wouldn’t be carried out as the courts would issue rulings that stopped that.

              The Constitution and the laws are already there. It shouldn’t take a court to uphold them.

              I misstyped, I should have said “properly interpreting and ruling” based on the Constitution. But what you’re saying is like saying Highway Patrol and the traffic court aren’t needed because the we already have traffic laws.

              Read what I wrote again, specifically the bottom line. The Constitution provides basic rights and protections. The President can issue orders of law enforcement. If you don’t like his orders, blame him for ordering them. Congress can pass laws of protection beyond what the Constitution specifies. If you don’t like the laws of protection we’re getting from Congress, blame them. Finally, any executive orders that are violating laws or violating the Constitution needs to be ruled on as such by the Supreme Court. If you don’t like how the President is issuing orders because you believe them to be unconstitutional, blame the courts for not properly interpreting and ruling.

      2. You seem to have this notion that a Democrat President has nothing to do with all the bad things that happen while he is in charge. He is a complete doofus, derelict and communist, but he is the President. He is the HMFIC. So, he gets the blame.

        1. Who’s the real doofus, throwing around unfounded charges like an angry and racist Republican? Geez fellow. Turn the channel off Fox News and look up some actual facts once in awhile.

          1. Perhaps you would like to detail what of the above are “unfounded charges.”

            Or perhaps you’d like to continue to operate like an anonymous liberal coward, accusing someone of what you yourself are guilty of, dropping the mic and walking away.

        2. Perhaps, ‘Kent’, (sp?), you’d like to get an education that actually teaches you the correct definition of the word ‘communist’.
          Typical of many Americans who believe that anyone slightly to the left of Stalin or Ghengis Khan is ‘communist’.
          Jackass.

    1. We’ve had a rash of incidents here in Philly of police confiscating and smashing the phones of innocent bystanders if they were videotaping the arrest or took pictures.

    2. “Goons with guns…”

      IMHO the average beat cop is over zealous in the use of authority. But calling them “Goons” is akin to calling them jackbooted Nazis.

      While in the performance of their duties officers are called on to make life or death decisions daily.

      The real issue is about the rights of all citizens in all walks of life, be they criminals or not.

      1. Any public servant entrusted with responsibility of whether an American citizen is deprived of his freedom, ignores the law under which he has taken an oath to preserve and defend is a goon. Whether it’s 1933 Germany or 2014 United States.

    3. … certainly SOUNDS better, but face it – they are the same bullies who stuffed you in your locker in High School. Not ALL of them, of course … some of the bullies chose to be criminals. I’ve met some who were so strung you’d think they’d shoot up the High School for some extra action!
      OTOH: I’ve met some locals who are excellent at their jobs and not interested in causing trouble or “raising the threat level”. Unlike certain FBI agents who empty their pistols into the back of a “potential witness” who grabbed a stick in his own home. Murdering bully.

  1. If the court finds against the plaintiffs, then everyone should enable login password protection on their mobile phones. Anything more sensitive than the time and date should be stored in one of the many password protected encryption programs. This will keep the beat cop from being able to review a phone’s information from being viewed immediately upon arrest. However, any forensic technician worth his paycheck should have the skill and tools to hack the phone.

  2. Just the thought of them having their grimy hands all over my pretty makes me want to puke.

    Patting down my wife is one thing but designating my iphone is a whole other ball of wax.

  3. No prob. Give the cop your locked iPhone and say “Look all you want.” They can’t make you give em your password. That would basically be self-incrimination.

    1. That’s a good point. If the phone is unlocked, simply push the lock button and they won’t be able to get in.
      Now it will make an interesting court case if the police force you to open it with your thumb. That would probably be unlawful search and seizure.

        1. No, they can’t force you to hold your finger on the TouchID sensor. Well, technically they can because they have guns but then any evidence gained would be inadmissible in court.

          1. Why not? I think you _should_ be right, but today you never know what fascist insanity a court will allow.
            The argument that you cannot be forced to tell them your passphrase typically lies in a 5th Amendment argument that you cannot be forced to testify against yourself. Telling them a passphrase is conveying information that could harm you. That argument hasn’t always won.
            The police are usually allowed to collect physical evidence from arrestees, including fingerprints. The fascists often in control of law enforcement might argue that putting your finger on your phone is a combination of fingerprinting and taking a key you had on your person and using it.

            There is no way it should be allowed, but don’t be naive about how bad things have gotten in the U.S. when it comes to violating the rights of arrestees (and everyone else!).

  4. Don’t participate in illegal activities. If you choose to participate in illegal activities, don’t keep incriminating data on your phone. Its Just That Easy!

    1. How about someone who is protesting? How about someone who is involved in an auto accident? What about someone in NYC who is stopped and searched without probable cause by the police on the street?

      Easy to say “don’t participate in illegal activities”, but you never know what a police officer might feel he or she needs to do in a situation. And there’s never any need to give the government any information unless it’s to your advantage to do so.

    2. That’s a really foolish thing to argue. The underlying assumption in your statement is that the state is angelically pure in its intentions. If that assumption were true, we wouldn’t need any officially protected rights at all, since the wonderful people who have a monopoly on violence would never use it against the wrong people.

      Somehow I doubt that you actually believe that, so you should examine the things you say (before you say them) to determine whether they imply you believe things that are crazy.

  5. It is a shame that the criminal wants the state to look the other way when he commits a crime and not catch him for other harmful acts. When you do something that harms society, then society has the right to protect itself and stop you from doing all the harmful things you are doing. I am sick of these people who know that they are guilty finding ways to wiggle out of taking responsibility for their actions.

    If the police and justice system want to search you for evidence of other wrong doings, then I fully support them in putting you away. If the police plant evidence or falsify testimonies, they should be put away for twice as long. Lasting peace is dependant on true justice.

    1. 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.

            1. lol, not only are you bizarre, you’re desperate. Since Apple is in America and MDN covers Apple, it’s logical to conclude American spelling of English words are appropriate.

            2. It is also illogical to try to pervert the English language because a few Yankees couldn’t spell or pronounce words correctly and decided to try to force the entire world to adopt their ways. I am Canadian and spell using the British spelling. Your country’s cultural imperialism has not gone unnoticed in the world. Many people around the globe strongly dislike your country’s arrogance. Even worse though, many US citizens don’t care.

            3. Well, perhaps it would be best if you followed a Canadian tech company instead of , an American company based in Cupertino, California in the United States.

              I hear that Dingleberry or whatever its spelling, is a premier tech company in your country. Post your horseshit there.

            4. I am sure that I was using Apple products before you knew what they were. I have purchased them over the years and eventually bought a lot of stock. I have never found another company that makes Macs or iPhones or iPads or iPods or Apple TV’s or Airport Expresses or MacBook Pros. Apple never forced my to spell in the Yankee style but allowed the world to use British spelling because they are respectful of the world’s peoples even though Apple is a US company that makes most of its products outside of the US.

            5. Read my comment further down. Botvinnik is absolutely correct. The 4th Amendment’s meaning is not complicated. It requires a warrant issued by a judge for any searches, based on reliable testimony under oath that there is reason to believe that a crime has been committed. There are only two exceptions. An officer may search the person of a suspect upon arrest to discover whether the arrestee is carrying any weapons. An officer may also search without a warrant whenever it is reasonable to assume that evidence will be destroyed before a warrant can be issued. Neither exception applies to the data on your phone or computer, which may be seized to prevent such destruction of data until a warrant can be issued. I’ll be very surprised if SCOTUS changes this basic, long standing interpretation to accommodate California.

            6. “An officer may also search without a warrant whenever it is reasonable to assume that evidence will be destroyed before a warrant can be issued.”

              Does this not apply to phones or computers, particularly when both can now be wiped remotely?

            7. The contents of one’s pockets are normally temporarily confiscated upon arrest. If the officer gains possession of the phone and simply turns it off there is no further need to worry about evidence being wiped.

            8. Simple. Police officers have confiscated the phone, so all they need to do is pop out the SIM card and power it down. Evidence preserved until a search warrant is granted. If a judge refuses to grant the warrant, the information is preserved.

        1. 1. The person is not convicted of committing a crime just because the police happen upon them in some act or deed. The government still has to prove its case.

          2. The information being taken from an iPhone or Android phone will usually have very little to do with the alleged act the person was committing, but the police will use the information to add additional charges, go after other people, etc.

          3. It’s called the right against self-incrimination. In our country, the government has the burden of proof, and they have to get the information legally and without coercion.

          4. What’s the rush? If the police have probable cause to arrest you for an alleged crime, then it should be no problem for them to get a search warrant to search your phone. This is one of our system’s checks and balances — a judge has to agree that probable cause exists and not just take a police officer’s word. And if there is no probable cause, then the search doesn’t happen.

      1. I normally agree with you, but here probably cause has been established. The person has already been arrested. I would hope that the information acquired would be limited to that related to the arrest, but that is a legal matter after the fact, just is it would be if a proper warrant had been acquired.

        1. Any evidence legally discovered is admissible, even as it pertains to an entirely different crime. That is the problem with warrantless searches if they are allowed. They turn into wide ranging fishing expeditions.

        2. Probably cause has been established for the arrest on the actions the person was doing which the officer witnessed, but not for searching the phone immediately. There has to be probable cause that evidence would be stored on the phone, not just that the person committed the crime. Plus, the evidence isn’t going anywhere, so there’s no risk of destruction (power phone down and remove SIM card). The police could also make a backup of the phone’s data back at the station.

    2. Agreed. The headline doesn’t quite tell the whole story here – this is after an arrest. Not just being pulled over for speeding, but an arrest – you were already caught dealing drugs or such. That is where your rights ended. They could just as easily (probably should, but I like the cutting of the red tape here) hold it with your other personal effects until they get what should be an easy to acquire warrant.

      1. When I studied Constitutional Law in law school, we learned that the ability to search a suspect’s person without warrant UPON ARREST is for the safety of the officer. The intent of allowing such a warrantless search is to detect any weapons or other other dangerous implements with which the suspect might later attack an officer. This may be done ONLY upon an arrest, not during a detainment like a traffic stop. No other warrantless searches are authorized under the Constitutional requirements. There is no reasonable danger to the officer from information stored on a cell phone. There’s nothing physical stored inside it that could be used to harm the officer. Therefor, it is not subject to search upon arrest. Any first year law student could correctly rule on this.

        1. The safety of the officer is important to society and the officer. The safety of the society is supposed to be what the law is about. When the law is misinterpreted and used by the criminal elements, all our laws become a joke and the entire society is harmed. The criminal needs to be taken out of society when they are harming us and the law must not be twisted and abused to thwart that aim.

          1. And in this case, the criminal element you speak of would be the California police officer who is willfully and illegally violating a suspect’s rights. The arrestee is not yet a criminal at the point of arrest. He/she is a suspect.

            1. In short, you seem to be advocating that the ‘suspects’ should not face true justice but in fact just be left to do whatever the want and yet limit the servants of the law to just being onlookers. How can we get true justice?

            2. What is your idea of “justice” for someone who was walking down the street to get a quart of milk, when he is arrested by a police officer because he fits the description of a bank robber who robbed a bank 10 minutes prior 2 blocks away? To me, justice is that this person is treated with respect and considered innocent until proven guilty.

            3. @3I3c7ro: You clearly don’t agree that a person is innocent until proven guilty. You are consistently advocating grabbing a suspect (a person is a suspect until proven guilty), freeing the police to search and do anything they want to the person, all before anything even comes near a judge.

              You frankly need to be wrongfully arrested to see the ridiculousness of your position. We MUST be free of government and police abuses, and the only way to do that is to REQUIRE simple things like obtaining a warrant before searching a person’s phone (and therefore judicial review of the claimed reasons for the search).

            4. I knew someone would come up with that stupid argument, bizlaw. I won’t speak for electro here (sorry, I’m tired of spelling things with numbers to be cool; it annoys me and wastes my time), but I’m talking about situations where the person actually committed the crime. Black and white. It happens. People admit to their crimes, and you still want them to be called innocent until they’ve had their day in court. I call that stupid. Most of the world would agree with me, and I don’t care what the courts say about it. Most of the world would agree with me that the courts are stupid, too. Necessary? Sure. Stupid? More often than not. When a person is taken down with the smoking gun still in hand after shooting someone, it is stupid to call them innocent until proven guilty – even if it is later decided that they are “innocent by reason of insanity”, they still are in fact guilty of having killed another person. A little common sense could do so much good for us today.

            5. The arrestee may not be a *convicted* criminal, but he is in fact (not by law, but by havening actually committed the crime) a criminal. He may not have been proven guilty in court, but he is in fact guilty of having committed the crime. In fact, being “proven” innocent by some crazy loophole in our system will not change the truth that he is actually guilty.

              Historically, these laws (Fourth Amendment – 4A – here specifically) were established in order to protect the average (usually innocent) man from overbearing tax collectors and laws which allowed for people to be searched on a whim so that taxes could then be assessed and charges made up against them. *That* was the purpose. Today, we claim to protect the letter and intent of the law, but in fact only really care about the letter, not the intent. They were not established to protect the guilty from being properly prosecuted as they are used today. They would never have been interpreted this way 150 years ago, and it has only gotten this stupidly out of hand in the last 50ish years.

              3l3c7ro is correct to question “reasonable” up at the top of this. It was only in the 1960’s that we started questioning what was reasonable, and I still say it is reasonable to search someone arrested for drugs. I realize that the courts today would find against me, but I also know that they would have been found to be the unreasonable ones before that time. There is probable cause, and that search is not unreasonable. It isn’t a fishing expedition to see what can be found to use against them – they’ve already been caught red handed.

              Yes, current interpretation of 4A makes the policeman the criminal. How can anyone truly believe that is right? As we’ve become “more advanced”, we have absolutely gotten stupider. The common sense that the law grew out of has been lost on today’s system so much so that our founding fathers wouldn’t even recognize it.

            6. I’m not going to waste my time proving each and every one of your points wrong, which they are. You don’t like the courts because they demand that the police follow established, legal procedures. I hope someday you are on the wrong end of that situation and you get your wish. Without the courts and due process what you have is a police state, where you are guilty because the police say you are. People like you will be the reason this nation is eventually lost to tyranny.

          2. And the criminal will be taken out of society/punished, but only if due process is upheld. It is far, far worse to provide the police with significant authority and wind up convicting innocent people than it is to have a few criminals escape justice. How would you feel if you, your spouse, you kids were convicted of a crime they didn’t commit because the police could do whatever they wanted?

    3. Electro, you are sometimes terrifying in the way you propose ideologies and policies that would directly enable a full-on totalitarian state. Think a little more critically, would you please? I worry that gullible people will listen to your ideas, follow ghtme to their logical conclusions, and vote (more) fascists into office.

      Ugh.

      1. Wanting criminals to not be able to hide behind poorly interpreted laws and instead be held responsible for their actions is full-on totalitarian and fascist? Wow. And I always thought I was opposed to fascism, but as you have drawn that conclusion here, (if I were to listen to your idea and follow it thought to a “logical” conclusion) I guess I’m in favor of fascism!

      2. Please try to understand that true justice is not totalitarian despotism. We have to think in new ways and teach our children the highest morals so that they are not part of the problems in society. When we model these traits and we strive for true justice, the bad deeds of our society will be punished and slowly disappear from the culture. The law is only a tool of justice and is a fairly crude tool at that. There is the letter of the law and then the true intention of the law. We have to strive for the latter.

    1. as an old Dublin lawyer once remarked:

      “The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime, and the punishment of his guilt. “

  6. CONSIDERING
    “Since the country’s founding, an arresting officer has traditionally been permitted to search and inspect, without a warrant, anything found on the arrestee’s person, even if that meant opening closed envelopes and containers, and flipping through the accused’s notebooks, datebooks or wallets—all containing private information that does not differ in kind from what is now stored on cellphones,”

    “…‘Technology now makes it possible for individuals to carry huge quantities of information with them every day,…;

    ‘Prior to the advent of digital technology, this information would have been stored in the drawers and file cabinets of people’s homes,’ they write. ‘Law enforcement officers would have been required to obtain a warrant in order to search such materials.”

    WOULD BE CRIMINALS TAKE HEED
    Get yourself a Winnbago and store you phone in a drawer or file cabinet.

    Better yet. Clean up your flipp’n act. Tired of having to pay for your room and board.

    1. Yes, an iPhone is quite valuable stored in the drawer of your Winnebago. /s

      Just what we need — police officers pulling over Winnebagos to see if grandpa and grandma have any cocaine in the storage areas.

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