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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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seanob

 
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I am a career prosecutor. The issue is complex. In general, the 4th Amendment to the US Constitution prohibits unreasonable searches and seizures of property without a search warrant. A search warrant is issued by a judge who is presented with information, under oath, by police officers, as to the reasons why they believe that the item, building, vehicle, or other container may contain evidence of a crime. The standard is whether or not there is probable cause to believe that the place sought to be searched has that kind of evidence of a crime.
The 4th amendment right to be free from unreasonable searches and seizures without a search warrant approved by a Judge, actually has many exceptions that have developed over the years. It is the study of more than two years in law school, studying criminal law and constitutional law to know all of them. But the issue in this case was this: When a person is arrested for a criminal offense, anything on their person, in their vehicle or within their reach, can be seized and searched by the police. For instance, when a person is arrested in their vehicle, the inside of the vehicle, except for the parts of the vehicle that are separate (trunk, etc), can be searched and examined. Also there is an exception for what is called exigent circumstances. For example, you stop someone who is suspected for having kidnapped someone. You may be able to search the trunk for that person, without a warrant, to ensure their safety. You just may have to justify that decision later if the search turns up incriminating evidence.
The issue in the Supreme Court case is not whether the phone could be seized. Based on the arrest, the seizure was all right. The issue is whether, once having seized the phone, you could go into that phone and peruse the information inside, without a search warrant.
An exigent circumstance that might allow you to do that at the scene of the arrest is when you have reason to believe that the phone might hold information that would lead to the location of a kidnapped child. Absent that kind of situation, the case merely states that, if you want to go into the phone that has been seized, and indeed, into any device that has information in it (laptops etc) you need a warrant.
Already prosecutors around the country are setting up procedures for quick search warrants regarding these situation. It has always been true that prosecutors and Judges can be on call to respond any time of the day or night, to address those issues. Indeed, the court recognized that these warrants, if there is probable cause for them, can be quickly obtained.
None of this is new. It is just new as to cell phones.
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erics72

 
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Quote:
Originally Posted by seanob View Post
I am a career prosecutor. The issue is complex. In general, the 4th Amendment to the US Constitution prohibits unreasonable searches and seizures of property without a search warrant. A search warrant is issued by a judge who is presented with information, under oath, by police officers, as to the reasons why they believe that the item, building, vehicle, or other container may contain evidence of a crime. The standard is whether or not there is probable cause to believe that the place sought to be searched has that kind of evidence of a crime.
The 4th amendment right to be free from unreasonable searches and seizures without a search warrant approved by a Judge, actually has many exceptions that have developed over the years. It is the study of more than two years in law school, studying criminal law and constitutional law to know all of them. But the issue in this case was this: When a person is arrested for a criminal offense, anything on their person, in their vehicle or within their reach, can be seized and searched by the police. For instance, when a person is arrested in their vehicle, the inside of the vehicle, except for the parts of the vehicle that are separate (trunk, etc), can be searched and examined. Also there is an exception for what is called exigent circumstances. For example, you stop someone who is suspected for having kidnapped someone. You may be able to search the trunk for that person, without a warrant, to ensure their safety. You just may have to justify that decision later if the search turns up incriminating evidence.
The issue in the Supreme Court case is not whether the phone could be seized. Based on the arrest, the seizure was all right. The issue is whether, once having seized the phone, you could go into that phone and peruse the information inside, without a search warrant.
An exigent circumstance that might allow you to do that at the scene of the arrest is when you have reason to believe that the phone might hold information that would lead to the location of a kidnapped child. Absent that kind of situation, the case merely states that, if you want to go into the phone that has been seized, and indeed, into any device that has information in it (laptops etc) you need a warrant.
Already prosecutors around the country are setting up procedures for quick search warrants regarding these situation. It has always been true that prosecutors and Judges can be on call to respond any time of the day or night, to address those issues. Indeed, the court recognized that these warrants, if there is probable cause for them, can be quickly obtained.
None of this is new. It is just new as to cell phones.
+1.

So what happens, or what do you do, if you get pulled over randomly by an a-hole cop (plenty of those) that are having a boring night, and want to bust someone's balls (plenty of that happening as well). And they want to search your person, and peruse through your mobile?

A common scenario; if you decline, they take offense and press you. Drumming up false charges, knowing it won't stick. But they can at least detain you for questioning, for up to 48 hours. I've had this happen to friends. - A waste of tax payer's money if you ask me. Especially when their are real crimes, and real criminals on the street. - Mind you, although they were completely innocent, they did become stand offish to the officer. Which is what I believe set the officer off, and retaliated using the full extent of his authority. I've even heard of cops, damaging people's property (mobile), when the owner wouldn't let them look through it. Just because some where a badge, doesn't mean they've earned it. A-holes are a-holes no matter who they are, and what they do.
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lclev

 
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Quote:
Originally Posted by erics72 View Post
+1.

So what happens, or what do you do, if you get pulled over randomly by an a-hole cop (plenty of those) that are having a boring night, and want to bust someone's balls (plenty of that happening as well). And they want to search your person, and peruse through your mobile?
I would start by not being an a-hole. Just because a cop is acting like one does not mean you do. I always follow the be nice, be nice, be nice principle. I does no good to give like for like. If the cop is a jerk to me at least I have the satisfaction of knowing I was polite. It can also help to diffuse a situation.

Lisa
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edinjapan

 
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This is all very well and good for those of you who are US citizens but, how is that going to help someone in China who, when stopped by Chinese police, can be beaten and jailed if he refuses to hand over his cell phone.
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Me being a female would call someone before I even roll down the window and do FaceTime or at least speaker phone so they can hear me give my location and Badge # of the Officer. I would explain to the Officer that I told them I would be home by a certain time and they worry too much and would have reported me missing if I had not let them know I had been stopped. Then I would lay the phone in my lap with it still on until the officer walked away and I could secure myself and drive off. I would also show the officer my weapon I carry in my purse so there is full disclosure and apologize for whatever perceived unlawful act I may have committed. Of course, this would not happen because I know longer drive but it sounded good to me anyway.

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Quote:
Originally Posted by edinjapan View Post
This is all very well and good for those of you who are US citizens but, how is that going to help someone in China who, when stopped by Chinese police, can be beaten and jailed if he refuses to hand over his cell phone.
The thread is not about China or Chinese law; it is about a US Supreme Court decision - if you've been following. Other countries and their laws may differ from ours but that is not the topic of this discussion.
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lclev

 
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Quote:
Originally Posted by edinjapan View Post
This is all very well and good for those of you who are US citizens but, how is that going to help someone in China who, when stopped by Chinese police, can be beaten and jailed if he refuses to hand over his cell phone.
Actually, I have been to China. EVERYONE had a cellphone there. I would not be happy with handing over my phone but I would. It just isn't worth it to me to fight over what is on my phone. I was told about the "Chinese Desert" when we were there. I also saw the police/military literally everywhere. I would still follow the "be nice" philosophy and count the phone a loss.

In the U.S. you can always pursue legal avenues if, when in the U.S. they take your phone.

Lisa

Last edited by lclev; 07-12-2014 at 08:42 AM.
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chas_m

 
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MEANWHILE IN CANADA:

Canadian Supreme Court Delivers Huge Win For Internet Privacy - Slashdot

(on the specific matter of cell phone seizures etc suffice to say the laws are different here)
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cloudyplusplus

 
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Re: 7-1 decision by the Supreme Court on this issue. One thing that the court has made very clear is that they do not understand technology and more importantly, the implications of technology on our lives and culture. Technology is moving so quickly, they simply can't keep up.

I'm impressed that this ruling was as emphatic as it was.

Another related issue to keep you up at night ... your employer can confiscate and forensically examine your personal phone, tablet or computer if (a) there is legal discovery going on, (b) they believe you might have something discoverable on your phone, tablet or personal computer and (c) you've ever connected to your office's network with the device in question. During examination, they can keep the device for as long as they need and though they need to protect any information that relates to the discover, they don't have any responsibility to protect your personal data. Checkout:

Can your company seize your personal smartphone or tablet? | The Family HelpDesk

What I don't know is how this particular ruling impact this issue.
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Originally Posted by cloudyplusplus View Post
One thing that the court has made very clear is that they do not understand technology and more importantly, the implications of technology on our lives and culture.
They can though. In R v. Vu, the Supreme Court ruled that "computers [are] fundamentally different from physical receptacles found at a premises" and that "specific, prior judicial authorization" is required above the required warrant needed to search a premises. In their unanimous ruling, they note four things that make technology different which demonstrated a nuanced insight into how technology is different (source).

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erics72

 
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Originally Posted by lclev View Post
I would start by not being an a-hole. Just because a cop is acting like one does not mean you do. I always follow the be nice, be nice, be nice principle. I does no good to give like for like. If the cop is a jerk to me at least I have the satisfaction of knowing I was polite. It can also help to diffuse a situation.

Lisa
And that's just common sense in any other situation. But the question is, what would you do if the cop was an a-hole, and violating your rights. ie. wanting to look through your personal effects without just cause, and no warrant. He was strictly being a jerk and busting your chops. Because he can. Would you submit, and let him/her violate your rights? Or would you stand up for your rights. Which would likely lead to you having to be a "jerk" to the cop when push comes to shove.

Not as simple an answer as you would like it to be.
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Originally Posted by erics72 View Post
And that's just common sense in any other situation. But the question is, what would you do if the cop was an a-hole, and violating your rights. ie. wanting to look through your personal effects without just cause, and no warrant. He was strictly being a jerk and busting your chops. Because he can. Would you submit, and let him/her violate your rights? Or would you stand up for your rights. Which would likely lead to you having to be a "jerk" to the cop when push comes to shove.

Not as simple an answer as you would like it to be.
Yes, it is. I can be nice .... and call my lawyer....I didn't say I would be a pushover. After 30 years of public high school teaching, I have found being nice but, emphatically informing them as to the potential ramifications of their actions, works nicely. It allows for the potentially offending party to reassess their options.

A-holes are everywhere. This does not mean I have to be one. Nothing is ever simple - humans are not simple but how I act in the situation can be my choice. If someone wants to violate my rights by going through my stuff with out a warrant just because he or she can well, my reacting like an a-hole will not help the situation. That's why they make lawyers.

Lisa
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The actual answer to the question posed in the title of this thread is "yes."

In the United States, the SC is saying that if you are arrested, police CAN confiscate your phone, but NOT search it without a warrant/probable cause. Under certain circumstances, where they believe you might be involved in a bomb plot or a child kidnapping, etc, the police can search your phone without a warrant.
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Quote:
Originally Posted by chas_m View Post
The actual answer to the question posed in the title of this thread is "yes."

In the United States, the SC is saying that if you are arrested, police CAN confiscate your phone, but NOT search it without a warrant/probable cause. Under certain circumstances, where they believe you might be involved in a bomb plot or a child kidnapping, etc, the police can search your phone without a warrant.

Very well said and you are spot on! That is exactly the decision of the Supreme Court. To be honest I believe it is a fair decision.

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urbanman2004

 
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Unless they got a warrant I ain't going... and even if they did, unless they have no probable cause, a warrant is useless. I will not be violated of my rights to due process that's owed to me
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