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Security Awareness Discussion of all things related to the security of Apple devices.

Can Police Confiscate Your Smartphone


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Slydude

 
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You're right Harry. Some judges seem to have a somewhat broader definition of probable cause than others. Within reason of course. Generally the process involves law enforcement giving the judge an explanation of why they think the individual in question has a high probability of having committed the crime in question.

There are some exceptions to the need for a warrant. One being if the evidence in question is in plain sight while an arrest is being made. Or if the police are there for another legitimate reason. There are other exceptions and I am sure some of our legal types could think of many more.

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Quote:
Originally Posted by harryb2448 View Post
Guess it all revolves around that word 'reasonable'.
Yes 'reasonable' . . . When it comes to subduing a person, we could use 'reasonable' force, and when it came to 'reasonable' it meant, to a point where you use whatever means to take them into custody. If that meant a choke hold, enough to loose consciousness for a few seconds so we could zip tie there hands together, so be it, so 'reasonable' is very very subjective.

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vansmith

 
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Quote:
Originally Posted by Slydude View Post
The Fourth Amendment to the US constitution prohibits unreasonable search and seizure.
Then how did that one justice argue that confiscation of personal property wasn't unreasonable? I fear that I'm missing important details about this case (was it about confiscating it once you've been arrested already?).

Quote:
Originally Posted by TattooedMac View Post
What constitute's "reasonable cause" ?? Where is that line drawn ?
Here, it's been debated at the Supreme Court in R v. Lifchus (that's more about reasonable doubt but I imagine that some of those principles might apply including presumed innocence and logical connection to evidence).

Quote:
Originally Posted by TattooedMac View Post
If that meant a choke hold, enough to loose consciousness for a few seconds so we could zip tie there hands together, so be it, so 'reasonable' is very very subjective.
I don't know about Australia but I'm fairly confident that a choke hold wouldn't fly in any jurisdiction here as reasonable force.

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Last edited by vansmith; 07-05-2014 at 09:57 AM.
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chscag

 
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Quote:
I fear that I'm missing important details about this case (was it about confiscating it once you've been arrested already?).
Yes, that part was left out. The individual had already been arrested and the police confiscated his cell phone and found incriminating evidence on it. I don't know the exact details but the evidence was thrown out because the police did not have a warrant to search the cell phone.
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Quote:
Originally Posted by chscag View Post
Yes, that part was left out. The individual had already been arrested and the police confiscated his cell phone and found incriminating evidence on it. I don't know the exact details but the evidence was thrown out because the police did not have a warrant to search the cell phone.
Well, that makes a lot more sense then. I can see why there may have been judicial dissent and how this isn't so clear cut. Thanks for clarifying!

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GrannySueSnaps

 
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Sorry I haven't responded but my daughter and her 12 kids have been here. I will give more input tomorrow. Great discussions.

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GrannySueSnaps

 
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My understanding is that it basically comes down to this; a law enforcement officer cannot legally search your phone without a search warrant and a search warrant cannot be obtained without probable cause. However, they can seize the phone to preserve any evidence and once they get a warrant they can search it.

A few years ago I wrote a couple of blog posts about some actual cases relating to this subject. Since the site where they were posted is no longer active I cannot provide links. If I can find a way that the forum allows I will upload those posts.

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I believe that while a person had the "right" to not have their phone searched, it was a gray area that was being exploited. Technology has created a whole new set of issues and the new ruling has provided clarity. Cellphones have come along and created a whole wealth of information - especially for law enforcement. Come on, we use them like they are our life line, recording all kinds of things, creating a target rich environment.

Next will be our ipads - I carry mine in my purse - doesn't everyone??? And just wait...with the wearables on the horizons that too will raise questions.


Lisa
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Quote:
Originally Posted by lclev View Post
I believe that while a person had the "right" to not have their phone searched, it was a gray area that was being exploited. Technology has created a whole new set of issues and the new ruling has provided clarity. Cellphones have come along and created a whole wealth of information - especially for law enforcement. Come on, we use them like they are our life line, recording all kinds of things, creating a target rich environment.

Next will be our ipads - I carry mine in my purse - doesn't everyone??? And just wait...with the wearables on the horizons that too will raise questions.


Lisa
I carry my iPad, backup charger and sometimes my Kindle along with my iPhone. Most of the time I have my Typo Keyboard with me as well. I believe (maybe not in our lifetime) but in the future there will be no "assumption" of privacy. That will go the same way the no-call list went. Our world is changing at such a fast pace I don't believe we will ever have the same rights or privileges we once did. Of course back when I was young the only communication you had was wired and the thought of someday having "wireless" never entered our minds. We were happy just chasing "light-up bugs"!

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Slydude

 
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Quote:
Originally Posted by lclev View Post
I believe that while a person had the "right" to not have their phone searched, it was a gray area that was being exploited. Technology has created a whole new set of issues and the new ruling has provided clarity. Cellphones have come along and created a whole wealth of information - especially for law enforcement. Come on, we use them like they are our life line, recording all kinds of things, creating a target rich environment.

Next will be our ipads - I carry mine in my purse - doesn't everyone??? And just wait...with the wearables on the horizons that too will raise questions.


Lisa
It seems that part of the reason for not allowing the search of cell phones without a warrant is the realization of just how much data people store on them. Including information, such as financial data, that law enforcement doesn't usually have access to without a valid search warrant. I think it's a logical extension of the ruling to apply the warrant requirement to iPads, wearables, and similar devices.

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Sure they can seize it if it is pursuant to a lawful arrest and in your immediate control. It goes into the lockup of your personal property along with your wallet and car keys. If they see you tossing it during an arrest it can be picked as well under a variety of rationalizations. They can sit there and stare at the screen and watch the preview lines of text from your email and texts pop up and your caller ID display, so long as no act of furtherance occurs on their part. Actively searching its contents is a different matter of course. If it can be reasonably articulated to a judge that its contents are germane to an investigation, or that life is in imminent danger, a warrant may be issued and it will be searched. The SCOTUS ruling, for all practical purposes, really just keeps the cops from noodling around and trolling for stuff without cause when they get you for something else.

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GrannySueSnaps

 
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Quote:
Originally Posted by TattooedMac View Post
What constitute's "reasonable cause" ?? Where is that line drawn ?
See this link for the answer. What Is a Reasonable Cause?

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GrannySueSnaps

 
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Quote:
Originally Posted by Slydude View Post
It seems that part of the reason for not allowing the search of cell phones without a warrant is the realization of just how much data people store on them. Including information, such as financial data, that law enforcement doesn't usually have access to without a valid search warrant. I think it's a logical extension of the ruling to apply the warrant requirement to iPads, wearables, and similar devices.
Let me play devil's advocate for a moment. Can we be reasonably sure that our information is not accessed via your network or internet? What if you use your personal device over the network at your workplace? What about personal emails that you send using your employee email account on your work computer? There are so many scenarios that there isn't just one answer that covers all situations. I know in my previous work I have had to personally go to 300 computers and check them for "unauthorized" activity. In this situation it was government equipment and you have no privacy expectations where it be laptop or smartphone. I was called a lot of names or having reported what I found.

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Slydude

 
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This ruling did not surprise me given that previous rulings concluded that law enforcement needed a warrant for GPS tracking. What does surprise/bother me is the number of people who seem to have the attitude something like if you've done nothing wrong what are you worrying about if they track your movements/data.

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@GrannySueSnaps I see the point you are making and those will be important facts as various cases come to bar. Given recent rulings I can say the following. I have no expectation of privacy when sending personal e-mail over an employer's network. If I am not mistaken there have already been cases addressing this.

I think you have swerved into an important point here. As technology improves/changes I think few people are really thinking about the privacy implications. In fact, as I said the prevailing attitude seems to be if you've done nothing wrong what do you care if someone accesses your data.

This is one issue where we better start paying attention to what views future appointees have about the Constitution in general and privacy specifically. It might be hard too get people excited about this though.
The amount of information people are willing to share is amazing. Most younger people are willing to share far more information on Facebook/Twitter for example than most of us would think of doing. Their definition of privacy is far different from the definition many of us have of privacy.

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