Cell Phones, iPod, iPhone, Handheld Devices
Police Can Search Through Cell Phone Contents
Unsettling Thought of the Day: The law allows police to search through cell phone contents of people who have been stopped for arrestable traffic offenses. Gizmodo reports that a recent academic article by South Texas Assistant Professor Adam Gershowitz explains that many traffic violations merit a search for contraband like drugs, and search parameters extend to hand-held devices. The law considers cell phones and iPods to be closed containers that police are permitted to "open," even if they contain your private text messages, photos, call history, browsing history and e-mails.
The thirty page article includes a 2007 case that went to the Fifth Circuit Court of Appeals – the United States v. Finley – in which police arrested a man following a drug sales sting and looked through the cell phone that was on his person. They found text messages that appeared to be connected to drug dealing, evidence which was used to convict Finley. In the end, the appeals court supported the legality of the search.
Truth be told, this news gives us goosebumps. Not because we plan on going 90 mph in a school safety zone, but because the larger issue of privacy seems to be at stake. It would be easy just write this one off as a proof that The Man is indeed a Fascist out to take away all of our liberties, but we just think it's a case in which the law has to catch up with technology. The writers of the Constitution and the Bill of Rights could not have foreseen this kind of scenario, and it should be the responsibility of the US Congress to take up the issue as we become more and more enmeshed in a gray legal area that hasn't kept up with technological developments. Do you think police are justified in looking through your cell phone during a legal search?
From Gizmodo
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Reader Comments (Page 1 of 2)
mike said 6:18PM on 1-24-2008
there again they need a warrant without it it's search and seizure as in my computer its not that hard to get a legal warrant if the suspect is under arrest this is america
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Denm said 6:34PM on 1-24-2008
they're reaching too far when they want to look thru your cell and ipod, we're still entitled to privacy as it is written in the Constitution !!
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marc said 10:01PM on 1-24-2008
It's happening and theres nothing you can do about it except get with the times.Dont text disrimenating things. Code callm .Bt u w s $$$$$
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steveo said 1:43AM on 1-25-2008
The problem is with the current right-leaning US supreme court which thinks any search is "reasonable." They have failed to protect us from "unresaonable seraches," such as the one mentioned in the article, even though the fourth amendment gurantees the right of the people to be free from unreasonable searches. It says, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . " Congress is hardly the group to extend protections, since any legislation would inevitably shield and immunize phone companies and police who searched anyway. Another good reason NOT to vote for a Republican president, who will nominate more like the righties (Scalia and Thomas) who couldn't care less about civil liberties like privacy.
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anne said 4:02AM on 1-25-2008
BIG BROTHER IS HERE...AND HE'S WATCHING YOU
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undrgrndgirl said 2:24AM on 1-25-2008
one of the questions that must first be asked/answered is whether traffic violations merit a search of the vehicle under any circumstances...
i am inclined to say no, but for the sake of argument, lets say yes, the vehicle is searchable...if it is then anything in it is also, right, including purses and gym bags?? if a purse or gym bag contains an address book isn't that searchable? what about a pad of paper with notes on it...searchable, too? if yes, then cellphones and ipods are also searchable...
i, however don't think a traffic violation of any sort without any other probable cause (like alcohol on the driver's breath) EVER justifies a search. EVER.
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Steveb said 9:13AM on 1-25-2008
I can't believe America cares that a police officer, who has reasonable suspiscion to search a car, can look through the cell phone. Not that it isn't an issue, but it is such a minor 1. WHO CARES??? Have you ever been searched? I haven't. I think people watch too much tv. If this gets 1 drug dealer off the street I say go for it!!!!!!!!!!
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DJN said 10:25AM on 1-25-2008
Steve B, apprently you've never heard of a slippery slope and believe no law enforcement agency or representative would ever abuse their power. Hate to bring race into this, but you're also probably white.
I have had my car searched and flashlighted for minor traffic violations, back before the era when cell phones were ubiquitous. Had I a cell phone back then, however, I don't believe a run light or a bad taillight is probable cause for the cop to have access to who I've been calling, what their numbers are, what I've been doing with my iPhone, what kind of photos I keep on my iPhone, etc. And if you don't believe parallel-but-less-technological abuses have been used to harrass ideological opponents of those in power, you don't know your human history or American history.
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Sharon said 11:04AM on 1-25-2008
I agree with Steveb COMPLETELY...I don't care if anyone looks at my cell phone. If you don't have anything to hide, why let it bother you?
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lone286 said 11:07AM on 1-25-2008
As usual, the press doesn't get everything quite right. Searching a cell phone is permissible as a search incident to arrest. A traffic ticket is not considered an arrest. The case law also requires that the search of the cell phone be performed prior to the end of the booking process. If it not completed by then, a search warrant must be obtained to continue the search. The case law also states that the only things that can be search are incoming and outgoing calls, contact information, text messages and media (pictures/video) stored ON THE PHONE. Voice mails are not covered, they need a separate search warrant. Think about it this way: It's the 21st century version of looking through your little address book you may keep in a car/purse and letters that might be laying around your car.
How do I know this? I DO it.
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R said 11:15AM on 1-25-2008
I guess most of you don't understand the law. The police have every right to search anything in your position or on your person in conjunction with an arrest. They do not need a warrant. This means your home if you are arrested there and anything in your home. Your computer, locked safes, phone records, anything. Same thing applies to your car. This law has existed for years before cell phones and will continue to be enforced. It doesn't violate your privacy because you lost that when you got arrested. If you don't want the police to know what's on your I-pod, it's easy. Don't get arrested and by that I mean obey the law. It really isn't that hard to do if you have respect for your fellow human beings and yourself.
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lone286 said 11:21AM on 1-25-2008
R,
Unfortunately you are wrong in some of your assumptions about the search power of police. Before any of you take what you read on here as gospel, I'd encourage you to research case law.
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Thom said 5:32PM on 1-25-2008
a legal search, does require a warrant should apply to phone content.
However seizure is realisticly not applicable.
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Thoma said 1:32AM on 1-26-2008
It amazes me that "inteligent" people think that modern technology should be available to them to enable them to commit a crime yet can't be used by the authorities to solve a crime.
Very wierd.
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Daniel Gaunt said 11:47AM on 1-26-2008
this can lead to abuse of powers like there was in the past. You could get stopped for speeding and the cop could use it as an excuse to look at your phone hoping to see maybe photos of your wife/husband naked... I mean lots of people have private pics on their phone and if a genuine cop saw them through a routine check it wouldn't be a problem, but some cops are pervs just like in any profession
have a look at my blogs:
http://freeextras.blogspot.com/
http://lifeorsomethingnotquitelikeit.blogspot.com/
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golfinkatiekat77 said 2:06PM on 1-26-2008
America is no longer the "Land of the Free". We had too many freedoms stripped away from us, usually at the hands of "do-gooders" that think we have to have a law about everything. Think about it, while it is a life-saving idea and just good old common sense, mandatory seat belt use is just one of the "freedom of choice" we have had taken away. I mean, I'm an coherent adult (most of the time, LOL), and I should be able to make the choice whether or not to use a seatbelt. Now, if I choose not to, then I think that my insurance company should have the choice of whether or not to pay for treatment of my injuries. Smoking is another freedom taken away. While we all know that smoking is detrimental to your health and the health of those around you, it still should be a choice. If I choose to go into a business that allows smoking, that is my choice. There are many ways that smokers can be accommodated where it won't bother non-smokers. I don't advocate smoking where children are or can be, but for criminy sake, IN A BAR???? In an open air stadium??? Outdoors??? There oughta be a law, that is what strips us of our freedoms one at a time and people don't really notice until it concerns something that affects them. CHOICE, NOT LAWS!!! We are supposed to be intelligent enough to make logical and common sense decisions, not have the government make them for us.
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ShaunSchlichEsq said 4:20PM on 1-26-2008
This is the kind of question that will end up on law school exams across the country. A search incident to a lawful arrest allows the police to search the individual and the individual's automobile without a warrant. If the person arrested had a notepad with incriminating evidence of another crime, or further evidence of the crime for which he/she was arrested, that would be admissible in Court. The same logic applies to a hand held devise that holds information. Some of that information is very personal, especially with the multifunction cell phones. In the digital world, that information is so personal that we believe the 4th Amendment would recognize the expectation of privacy. However, those expectations of privacy go out the
window, subsequent to arrest. So if you have compromising vids or pics on your ipod of you and your girl-friend or you thought that you
would list all your homeys that call you up for the 420 on your cell phone or you have been texting that hit man to kill your wife - I strongly suggest that if you plan to be arrested on a corner or while traveling in your car, just leave the cell phone at home.
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Jenny said 5:02PM on 1-26-2008
I only think a phone should be able to be looked through by the POLICE if you've been accused of doing something horrible, like selling drugs or murder. Everything else, like minor traffic offenses or whatever, I don't see the need to look thru someones personal phone.
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blue-eyes said 6:31PM on 1-26-2008
people talk about rights. yes you have them but that doesn't mean they are upheld by either police or the courts. (not all cases are unfair)but mine was. i was with a friend who was pulled over for a loud muffler (brand new one week old) my friend blew just over the legal limit, and was arrested, they drove me home as i was just at the legal limit, but then the police lost their breathalizer machine, long story short: they searched my home and in the process (all male police officers) separated me from my children and searched me but when the cop put his hand inside of my pants and panties, and at the same time pulled up my sweater above my bra strap i stepped forward (away from the police)and said no way, if he wanted to search me like that i wanted a female officer, i was denied and arrested for obstructing justice and assault. now, i never layed a finger on the cop. in court i explained to the judge and was still found guilty, fined and put on probation. Including theft of the breathalizer, my court appointed lawyer told me to say i set in on the side of the road or i would go to jail and loose my kids. and i was scared.but what about the charges of assault, and obstructing justice? all i asked for was a female cop. they never found anything in my home (because there wasn't anything to find. but the cop was in trouble with his superiors and was looking for a scapegoat. i have found that you are not innocent until proven guilty, you are guilty until you can prove your own innocents. I agree police sometimes think they have to much power and there are those that will threaten you with arrest if you do not "behave nicely"
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melvin dwayne said 6:53PM on 1-26-2008
why is it people want to hold the govermnt responsible for evrything that goes wrong. But they dont want them to tell them what to do if people dont to do it. like you live below sealevel and a hurricane is coming. you lose your home. people need to take responsible for them selves. cell phones, haavf the accidents are because people are talking on the while driving and not paying atenton to where they are going. the law shouldbe able to look at them to see if they were on hte phone.
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