Friday, January 14, 2011

When does a cell phone become a computer?

Reading an Orange County Register Editorial, Court hangs up on Fourth Amendment, I learned that the California Supreme Court ruled on January 3, 2011 police may search the files and data stored on the cell phones of suspects who are arrested without having to obtain a warrant. 

The Administration of Justice major in me thinks the practice is a quick way to get information to use against the suspect.  As an investigatory practice, it sounds expedient.

The Constitutionalist in me says STOP!  What's the rush? Go get a warrant. 

The editorial sums up the ruling like this:
It is archaic and short-sighted to liken cell phones to an article of clothing or a wallet; they are more akin to minicomputers, often containing extensive, intimate personal and professional data. Applications on phones store financial information, bank records and passwords, not to mention personal e-mails, photos and text messages. Giving police offers undue power to seize and peruse cell phones without a warrant is a threat to fundamental rights.
Indeed, it is archaic and short-sighted.. 

My current Blackberry has far more computing power than my home PC, which is admittedly old and outdated but still in daily use.  Like most smart-phone users, my Blackberry provides direct access to my social network accounts, multiple email accounts, confidential work files, and sensitive data.  My phone acts as a single portal into the far corners of my life.  As such, I protect my phone like I would others might protect their laptop or a fine piece of heirloom jewelry.

Often, when posting bail and being released, personal items such as the clothes of the suspect are returned to him or her.  If a phone was truly on the same level as clothing, officers might remove the battery and inspect it for physical contraband before returning it to the suspect.

The standards, though nearly the same, are different when it comes to arrest versus search and how each are carried out.  In California, the officer must have probable cause to detain or arrest someone.  The search and seizure of property, however, is a little more strict. First, only a judge may issue a warrant.  Second, before the judge can sign off on the warrant, two requirements must be met: the judge must reasonably believe (1) that a crime has been committed, and (2) that evidence of that crime is likely to be found in the place(s) described in the search warrant.1 If the facts presented in the warrant application are convincing, the judge must sign and issue the search warrant.2

It takes a good argument supported by evidence to get a judge to sign a warrant.  This process helps create a filter against abuse and unreasonable searches and seizures.  Unfortunately, the California Supreme Court thinks that the mere arrest of a suspect, no matter the circumstances, allows for law enforcement to  dig into the arrestee's personal property which may be unrelated to the reason for their arrest. 

Imagine if a Justice of the Supreme Court were arrested, say for DUI, and their phone searched.  Would information in their phone, such as a text message to his or her spouse requesting a ride home after a few too many drinks, be used against them at trial?  Yes.  What if the Justice was married but requested a ride home from a secret lover?  Would the secret be out of the bag and would it would the information be used against the judge at trial?  Yes.  Would the Justice be more likely to think a warrant necessary for the search of his or her phone?  Yes, especially when the divorce attorneys obtained the same information used by the criminal court for the DUI from the court transcripts. 
1California Penal Code 1525 -- Issuance; probable cause; supporting affidavits; contents of application. ("A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched.")

2California Penal Code 1528 -- Issuance; magistrate satisfied as to grounds; formalities; command; duplicate original warrant. ("(a) If the magistrate is thereupon satisfied of the existence of the grounds of the application, or that there is probable cause to believe their existence, he or she must issue a search warrant, signed by him or her with his or her name of office, to a peace officer in his or her county, commanding him or her forthwith to search the person or place named for the property or things or person or persons specified, and to retain the property or things in his or her custody subject to order of the court as provided by [California Penal Code] Section 1536.")

3 comments:

  1. Question: Do the cops have the right to information on the phones themselves? Or can they gain access to any cloud or internet based information storage location?

    If they only have the ability to go for information in the physical phone/blackberry or droid, then one can do something about that while being pulled over. A big gulp or cup of water and in goes the phone. It will cost you the price of a new device but what is that really worth compared to your privacy? This is an argument for having a trac phone as a backup or to make those questionable calls.

    Most people doing most things are perfectly legit and would stand the light of a court room so just keep questionable calls off the expensive phone and you can drown the other.

    ReplyDelete
  2. Since people can use cell phones to set off bombs, I think that law enforcement would want to be able to see all information associated with the device. Not that it would do them any good if a terrorist was using a simple memorized telephone number to do the deed. There would be no record of that on the phone as the same thing could be done on a pay phone if the phone were lost or confiscated. Even when your arrested, you get one phone call right?

    ReplyDelete
  3. I decided I won't give anybody any more ideas and leave it at that.

    ReplyDelete

Greg Sebourn

Orange County Bail Bonds

The Beauty of a Storm

The Beauty of a Storm
Orange County, Ca.

My Grandma - A Eulogy

LET'S TALK ABOUT 1914 FOR A MOMENT.



FOR STARTERS, GRANDMA WAS BORN TUESDAY, DECEMBER 22, 1914 IN HER FAMILY'S ATWOOD RANCH HOUSE.



IT IS WORTH NOTING THOSE ALSO BORN IN 1914:

JACK LALANNE

JOE DIMAGGIO

DANNY THOMAS



AND WHO DIED IN 1914:

JOHN MUIR, THE FAMOUS NATURALIST FOR WHICH NUMEROUS ROADS, PARKS, HOTELS, AND NATURE RESERVES ARE NAMED.



IT IS ALSO WORTH NOTING THAT IN 1914 WOODROW WILSON SIGNS MOTHER'S DAY PROCLAMATION AND BABE RUTH MAKES HIS MAJOR LEAGUE DEBUT WITH THE RED SOX. MOTHER'S DAY AND BASEBALL- TWO OF MY FAVORITES!! (PERHAPS HER NICKNAME "BABE" CAME FROM BABE RUTH???)



GRANDMA WAS BORN INTO A PERIOD OF TIME FILLED WITH TURMOIL. IN JUNE OF 1914 ARCHDUKE FRANZS FERDINAND WAS ASSASSINATED. WITHIN ONE MONTH WORLD WAR I RAGED ACROSS EUROPE. TWO DAYS AFTER HER BIRTH HOWEVER, GERMAN AND BRITISH TROOPS INTERRUPTED WWI TO CELEBRATE CHRISTMAS. (PERHAPS THEY PAUSE KNOWING THAT A GREAT WOMAN WAS BORNE) WORLD WAR I CONTINUED UNTIL THE TREATY OF VERSAILLES IN 1919.



ALTHOUGH SHE WAS ONLY 5 YEARS OLD, SHE SAW THE LEAGUE OF NATIONS CREATED AND THE 19TH AMENDMENT WAS APPROVED BY THE U.S. CONGRESS GUARANTEEING THE RIGHTS OF WOMEN TO VOTE.



SHE LIVED THROUGH MANY NOTABLE EVENTS. LIKE THE 1933 LONG BEACH EARTHQUAKE OR WHEN ATWOOD FLOODED ALONG WITH MOST OF ORANGE COUNTY IN 1938 AND THE FLOOD-WATERS CLAIMED MORE THAN 50 PEOPLE, 43 OF WHICH WERE FROM ATWOOD! ALL OF THIS DURING A TIME THAT WE READ ABOUT IN SCHOOL AND KNOWN AS "THE GREAT DEPRESSION". SOMEWHERE IN ALL OF THAT SHE FOUND THE LOVE OF HER LIFE, GRANDPA LEO, GRADUATED HIGH SCHOOL, GOT MARRIED, AND HAD KIDS!



THEN THERE WAS WORLD WAR II. FROM PEARL HARBOR TO HIROSHIMA, GRANDMA WAS RAISING MY UNCLE BOB AND MOM ARLINE. WITH AIR-RAID SIRENS AND BLACKOUTS SHE WAS A WIFE AND MOTHER. WHAT A TIME TO RAISE CHILDREN! I BET GRANDMA'S PARENTS WERE ABEL TO TELL HER A THING OR TWO ABOUT RAISING KIDS IN WARTIME.



GRANDMA WAS THERE WHEN THE BOY SCOUTS OF AMERICA HELD THEIR 3RD ANNUAL NATIONAL JAMBOREE IN 1953. SHE SAW AIRBASES OPEN IN '42 AND CLOSE IN '99. SHE WATCHED WALTER KNOTT START UP HIS BERRY FARM AND WALT DISNEY TURN ORANGE GROVES AND STRAWBERRY PATCHES INTO DISNEYLAND!



SHE SAW THE HORSE AND CARRIAGE FADE AWAY INTO HISTORY AND SPACE TRAVEL EXPLODE BEFORE HER WITH THE FIRST LUNAR LANDING. JUST IMAGINE HOW MUCH TECHNOLOGY HAS CHANGED OVER THE LAST 100 YEARS. FROM TUBE RECTIFIERS TO SUPERCONDUCTORS; FROM TRANS-ATLANTIC TELEGRAPH CABLES TO SATELLITE TV.



SHE SAW MORE IN HER 93 YEARS THAN MOST OF US WILL EVER READ ABOUT, LET ALONE LIVE THROUGH!



OF THOSE 93 YEARS IT IS MY HONOR TO HAVE BEEN HER GRANDSON FOR 35 OF THEM. SHE WAS MY MOTHER WHEN MOM HAD TO WORK. SHE WIPED MY NOSE AND PUT FOOD IN MY MOUTH. SHE LET ME PLAY WITH GRANDPA EVEN THOUGH SHE NEEDED HIM TO TAKE HER TO THE STORE. SHE WAS MY GRANDMA AND I WILL MISS HER IMMENSELY.



JUST LOOK AROUND THIS ROOM; SHE DID THIS. SHE IS RESPONSIBLE FOR BRINGING SO MANY GOOD PEOPLE INTO THIS WORLD AND TOGETHER TODAY. THIS IS HER LEGACY.



A Dedication To My Loving Wife, Stacey. Thank you for all you do for me!

Brad Paisley - I Thought I Loved You Then


I remember trying not to stare the night that I first met you
You had me mesmerized
3 weeks later in the front porch light taking 45 min to kiss you goodnight
I hadn’t told you yet but I thought I loved you then

Chorus
Now you’re my whole life now you’re my whole world
I just can’t believe the way I feel about you girl
Like a river meets the sea
Stronger than it’s ever been
We’ve come so far since that day
And I thought I loved you then.

I remember taking you back to right where I first met you
You were so surprised
There were people around
But I didn’t care I got down on one knee right there
And once again I thought I loved you then

Chorus
Now you’re my whole life now you’re my whole world
I just can’t believe the way I feel about you girl
Like a river meets the sea
Stronger than it’s ever been
We’ve come so far since that day
And I thought I loved you then.

I can just see you with a baby on the way
I can just see you when your hair is turning gray
What I can’t see is how I’m ever gonna love you more
But I’ve said that before.

Now you’re my whole life now you’re my whole world
I just can’t believe the way I feel about you girl
Well look back some day at this moment that we’re in
And I'll look at you and say I thought I loved you then
And I thought I loved you then...

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