And if you wondered if it was really all that important nowdays.....
The next time you're in California, you might not want to bring your cell phone with you. The California Supreme Court ruled Monday that police can search the cell phone of a person who's been arrested -- including text messages -- without obtaining a warrant, and use that data as evidence.
That'll spread nationally.
Here's the problem - a typical cellphone nowdays contains a lot of storage. Enough, for example, to keep literally everything I've generated in terms of financial data for the last decade on it.
Now I don't keep that on my cellphone, but I do keep quite a bit of information on there - some of it inadvertent. When you email me, a copy gets echoed there. Text messages, paths I've traveled (the GPS navigator that I have loaded on it), etc.
The 4th Amendment 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, 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.
We of course paid no attention when they searched us at the TSA checkpoint - with a strip-search scanner. And note this well - everything they find in such a search can be and will be used to prosecute - even if it has no bearing on airline safety.
That is, if you have a "suspicious" looking cigarette case on your person, it is divulged on such a search, and contains a joint you're going to prison for marijuana possession, and the fact that the joint had nothing to do with airline safety - the justification for the search - is immaterial.
This is the same thing that happened in this case. The subject was arrested on suspicion of purchasing an illegal drug after he bought drugs from a police informant. Ok, as far as it goes.
Then they searched his cell phone, without a warrant - and found a text message that implicated him in a drug deal. He was convicted, in part, on that evidence.
The problem with these sorts of rulings is that they turn the 4th Amendment on its ear. The encroachment has been going on for a long time - in the 80s and 90s the rage was to "search" your wallet incident an arrest, and if you had a large amount of cash on you, bring in a drug dog. If it "hit" on the cash the money was then seized as having drug residue on it and thus being "evidence" of the use of illegal drugs.
The problem? Statistically, something like 90% or more of the currency in circulation in the $20 denomination and larger had cocaine residue on it in microscopic quantities - not from your use as a tube to snort drugs, but because someone else did before you acquired that particular bill, and while in circulation a few particles of drug rubbed off on it from another bill which was more-heavily contaminated.
That is, the so-called "evidence" didn't actually evidence anything at all - it was used as a pretext to steal your money when you had committed no offense by it's acquisition and possession.
What we keep seeing is an erosion of what are supposed to be fundamental Constitutional Rights.
There is nothing - other than expedience - preventing the police from getting a warrant to search your phone. In the case in question they almost-certainly would have been able to get a warrant. Or would they? Well, maybe - but that's why we have judges, it's why we're supposed to have warrants presented to search, and it's why we're supposed to be secure in our personal effects - including those on our person - the very definition of "personal effects."
The common exemptions cited by police are present for protection against the possibility that you have a weapon on you. That is, you might have a gun, and so when arrested a search of your person to ascertain if you have such a weapon is reasonable.
But a cellphone is not a weapon.
The response, I'm sure, will be "if you have nothing to hide why do you care?" Anyone propounding on that in response to this on Tickerforum will be required to post their address and irrevocable consent to a police search or they will lose their account - after all, they have nothing to hide, right?
If you truly believe that, then don't be a hypocrite.
For the rest of us, investigate and use strong encryption. Thus far, at least, we still have the right to refuse to disclose the key.
- California Supreme Court: Cell Phone Searches Don't Need a Warrant (reason.com)
- CA court okays cellphone search without a warrant (boingboing.net)
- Court Rules Cops Can Search Cell Phones When You're Arrested (dvorak.org)
- CA Supreme Court Allows Cell Phone Searches Without Warrant (sfist.com)
- Court: Cops can search cell phone without warrant (redtape.msnbc.com)
- CA Supreme Court allows police searches of cell phones without a warrant (americablog.com)
- CA Police Can Search Your Cell Phone Without A Warrant (laist.com)
- Why Your Cell Phone Is More Private in Ohio than in California (textually.org)
- Warrantless cell phone search gets a green light in California (arstechnica.com)
- On Why It's Better To Be A Drug Dealer in Ohio Than in California (abovethelaw.com)