Obama administration asks Supreme Court to allow warrantless cellphone searches

[cali]

If the police arrest you, do they need a warrant to rifle through your cellphone? Courts have been split on the question. Last week the Obama administration asked the Supreme Court to resolve the issue and rule that the Fourth Amendment allows warrantless cellphone searches.

In 2007, the police arrested a Massachusetts man who appeared to be selling crack cocaine from his car. The cops seized his cellphone and noticed that it was receiving calls from “My House.” They opened the phone to determine the number for “My House.” That led them to the man’s home, where the police found drugs, cash and guns.

The defendant was convicted, but on appeal he argued that accessing the information on his cellphone without a warrant violated his Fourth Amendment rights. Earlier this year, the First Circuit Court of Appeals accepted the man’s argument, ruling that the police should have gotten a warrant before accessing any information on the man’s phone.

The Obama Administration disagrees. In a petition filed earlier this month asking the Supreme Court to hear the case, the government argues that the First Circuit’s ruling conflicts with the rulings of several other appeals courts, as well as with earlier Supreme Court cases. Those earlier cases have given the police broad discretion to search possessions on the person of an arrested suspect, including notebooks, calendars and pagers. The government contends that a cellphone is no different than any other object a suspect might be carrying.

But as the storage capacity of cellphones rises, that position could become harder to defend. Our smart phones increasingly contain everything about our digital lives: our e-mails, text messages, photographs, browser histories and more. It would be troubling if the police had the power to get all that information with no warrant merely by arresting a suspect.

<snip>

http://www.washingtonpost.com/blogs/the-switch/wp/2013/08/19/obama-administration-asks-supreme-court-to-allow-warrantless-cellphone-searches/?print=1

[cali]

1. rush, rush rush to defend, kids. Let's hear it for how right the admin is on this

and don't forget to tell us all how the administration respects our privacy. Is there anything that some won't defend just because it comes from a democratic admin?

That was rhetorical and as has been made woefully clear, the answer is a resounding no.

[Skidmore]

22. Why don't we spend some time in trying to get the Patriot Act

and FISA provisions repealed or seriously amended? I find this whole personalities war to be idiotic, given that the laws remain on the books without any discernible discussion of them beyond the insistence that everyone focus on personalities while being told that it is not about personalities but the law.

BTW, I am a supporter of the President, have never liked Greenwald ever and still don't like him, and way back when the Patriot Act was being legislated and the FISA provisions were being put in place, I did a huge amount of giving feedback to Congress around this legislation because I did not agree with any iteration of it. As for the technology combined with the legislation, there is truth to the observation that one could surmise the future applications of both and can be not surprised when seeing that those applications have occurred.

I would love to hear voices loudly lifted with as much zeal as the personality wars on lending support to changing legislation and the intelligence gathering organizations of this nation.

[treestar]

64. Glad you are not on the court

Since you can apparently decide any question without legal knowledge. Or reading g the briefs from both sides first.

I'd rather have it be decided under law.

It may well be a part of a search incident to arrest.

Do you even know what that is?

[Warren Stupidity]

2. Obsolete:

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.

[Recursion]

7. Robinson and Edwards are both 40 year old cases by now

If you're arrested with a diary, they can read it.

If you're arrested with an address book, they can look through it.

Currently, if you're arrested with a cell phone, they can't do anything except read what is visible on the screen, and the SG's position is that the police should be able to look at the info on the phone like they can with the physical address book.

It's an interesting legal question.

[Warren Stupidity]

37. Yay authoritarian state! Keeping our children safe and protecting us from evile terrorists! Yay!

It isn't an interesting question. It is time to put an end to the national security state nightmare.

[George II]

28. I guess we need to define "unreasonable"?

[panader0]

31. and "probable cause"

[MNBrewer]

59. No. Reasonable. With a reason...

a specific reason combined with probable cause. As outlined in the 4th Amendment.

[George II]

60. The fourth amendment is, most likely intentionally, vague re: unreasonable and probable cause.

"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."

[MNBrewer]

62. I don't see vagueness at all regarding reason in the 4th

[George II]

66. That's because reason isn't in the 4th amendment

[MNBrewer]

68. That mistaken view is part of the problem

[George II]

70. It's un-reason-able. You can parse "reason" out of that, but whatever

[leftyohiolib]

3. meet the new boss ....

[newfie11]

4. What next???

What the hell is happening to this country?

[BumRushDaShow]

5. This is to force the Supreme Court to decide

so that there is "settled" case law put on the books, whichever way it goes, and then you go from there. E.g., let it stand like "Roe vs Wade" or the strike-down of DOMA, or push Congress to change the law. It's remarkable how DU blindly refuses to deal with how case law is generated.

[cali]

8. huge fail. The administration could have asked the SCOTUS to uphold

the first circuit ruling. they did the opposite.


that is a really sucky defense.

[BumRushDaShow]

14. Huge ignorance

If the Appeals Court ruling is left to stand as you just recommended (which was apparently lost on you), then there would be no need to take it to the Supreme Court to request to "uphold it". How breathtakingly idiotic.



By appealing, the government, who has the deep pocket, can make the highest Court provide a ruling to decide once and for all. The faster the better so that solutions to fix the mess can be formulated, depending on the details offered in such a ruling.

[msanthrope]

54. This post was juried--I cancelled off because I realized that I could not give a fair verdict.

Obviously, you passed.

[cali]

55. what's mindnumbing idiotic, honey, is the mindless defense of this

[treestar]

65. Sorry but you are showing

Complete ignorance of the legal system. Then when it is explained to you, you refuse to learn.

[KharmaTrain]

9. You're Pissing In Cornflakes...

...this appears to be REAL action to determine where one's private domain becomes public; a necessary definition if we're to reinforce the 4th amendment protections many claim no longer exist. It's far easier to follow the distraction and get into full poutrage...yet do nothing...which leads to more distractions and poutrage. I'm looking for real action, not rhetoric...

[BumRushDaShow]

15. This needs to be decided by the highest court - the Supreme Court. nt

[KharmaTrain]

16. Let's See If They Want To Step Into This...

...I suspect if there's a lower court ruling that pleases Scalia and his pals you won't see them take the case on. Otherwise, I agree...this needs to be adjudicated and defined...

[BumRushDaShow]

20. Because of the huge technology change

since the last case law, the limits to what can be looked at MUST be redrawn!

[KharmaTrain]

23. Parallels With The Second Amendment...

...another one that has changed with time and technology and needs constant review and revision. However you'll find absolutists on both issues who will not budge from the most literal interpretation they can give it. I've long felt that one's privacy ends at your front door...be it physically or electronically. While I would consider the government invading the physical confines of my home and confiscating a computer without cause or warrant...once I hit send I realize I have no real control on who can have access to my information. We all leave digital footprints...the ultimate question is how private can we make those footprints...

[BumRushDaShow]

29. +infinity

[merrily]

34. Depends on the composition of the Court.

If the government is taking a law and order case to this particular group of Justices in the hope of having them decide against the government, that is a very high stakes gamble.

[George II]

30. A bunch of keyboard lawyers

[merrily]

47. On the internet, we're all SCOTUS Justices, taking a break.

[Recursion]

6. Whoa there. That's an incredibly misleading headline

The solicitor general's position is that a cell phone on your person when you're arrested should be subject to the Robinson rule, just like a diary or address book would be, and can be physically examined.

[cali]

10. no, it's not. read the first circuit ruling

http://media.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=11-1792P.01A

[George II]

57. I think the ratio of misleading to honest headlines around here is 50:50

[Puzzledtraveller]

11. Mmm, Power, must taste really good.

[bowens43]

12. this president has been a disater, if there's a wrong side of an issue Obama is probably on it

[Ichingcarpenter]

13. 'LAWFULLY ARRESTED.

What does that really mean these days?


Cop:

He looked at me funny so I arrested him lawfully because I can. So shut up

Forget the drug crack exclamations hyperbole do you see over reach that could occur if they get what they want under false pretenses
. Cell phones are now like a private office with files, connections, family info, video... etc.

[Garion_55]

17. get an F'n warrant!!!

WTF is wrong with this president? did he hoodwink us all when he ran the first time? this is not the progressive president that I voted for.

[Fuddnik]

19. Yes he did.

[bonniebgood]

24. "Change is coming to America" Obama just omitted saying

change from a Democracy to Corporatism. He allowed you to hear and fill in the
blanks of what you wanted to hear, interpret and believe. Awesome!

[Cryptoad]

18. ummmmm

The SCOTUS will decide ,,,,,,,,,,ummmmmm

I know , I know,,,,, how to make things mo better!


Lets do all we can to empower the GOP so they can make more appointments to the Court!

Yea,,,, That's the ticket


geeez!

[Atman]

21. I wanted to be outraged at this...

But given the legal background, it's pretty tough. If the courts have ruled that diaries and such can be looked at, how is that much different than your phone? EXCEPT for that people don't tend to keep phone records, addresses and photos in their diaries. It's a vexing question. I'm inclined to invoke the "Brave New World" view; as with 2A, the collective we simply had no idea what was going to be invented years later, and thus didn't write science fiction into law.

[merrily]

26. Whether information is in a cell phone or a diary has nothing to do with the 4th amendment.

The constitutional issues have to do with reasonableness and probable cause (to suspect criminal behavior).

The Robinson ruling was about a single individual, already under arrest and in custody where probable cause existed for the original search and for the arrest. https://en.wikipedia.org/wiki/United_States_v._Robinson


Of course, this pro-authority Republican controlled court is as likely to screw the Bill of Rights as any other branch of government, even though Scalia said off the cuff (not in court) that he thought mass surveillance was not what the Framers intended.

[Atman]

32. I agree with you.

I'm just saying, I'm not knee-jerking in either direction. I think this is actually a complex legal question. And I have no faith that the SCOTUS will side with The People. However, I'd Scalia is true to his Federalist beliefs (instead of being a self-important douche bag), then we might be pleasantly surprised at the ruling.

[merrily]

44. I don't know how the SCOTUS will come out.

I've been reading the Circuit Court opinion at the link Cali gave upthread

The Circuit Court said that the facts of the Massachusetts case are more like the facts of the Chimel case than the Robinson case. So, the exact facts are going to be everything.

Before I put my foot in my post again, I want to finish at least skimming the court opinion, then compare at least the wikis on Chimel and Robinson. However, the Court said that safety in taking the suspect into custody had played a role in Robinson-an allegedly unidentifiable bulge detected during a routine pat down. (The Court had assumed everything else about the Robinson arrest to have been lawful.)

That may apply to a suspect carrying a cell phone detected during a routine pat down, if you only take custody of the phone. But it really doesn't apply to going through the contents of the cell phone. And, unlike bringing the suspect from the point of arrest to the station house, as was the issue in Robinson, there is no hurry in inspecting the contents of a cell phone that would justify not going to court for a warrant first.

So, it pays to read the opinion first, which I should have done before I attempted to say something about the new case.

[Atman]

69. Thank you.

A refreshingly concise, intelligent response. I'm going sit back for a moment and
Enjoy it.

[Jakes Progress]

25. I'm shocked. Shocked I tell you.

Where are the defenders? Where is the contingent of apologizers on this one?

It's getting so that the NSA stuff is like education. It is so bad that the usual crowd just avoids the threads. They can't defend it, so they just ignore it.

My party. Oh, my party.

[merrily]

48. "My party. Oh, my party."

It's the DLCDNC now. So, if the DLC is your party, you are correct. Otherwise, your party, is like Joe DiMaggio in the Simon and Garfunkel song.

In fairness though, a couple of defenders did show up. After all, the D of J and the Solicitor General just don't know how to defend the Obama administration on legal issues the way posters do.

[marions ghost]

27. What if we could actually dump our data?

What if delete meant permanently? I know it's possible to do that, it's just not integral with our devices.

[Atman]

35. There should be an "Emergency Erase" button.

Seriously...you're being followed at the ATM, or walking home. Just dump all your data and lock the phone. But I doubt The Government would allow that. I'd sure buy a phone with that feature, though

[marions ghost]

43. I would too--

I wonder why nobody has capitalized on that? It's legal I would think. We should even be able to erase /or block the cloud data.

"The govt wouldn't allow that"--doesn't seem like they should have any say in it--no more that if you burned a journal. It's just too easy for anyone to use your digital data against you.

I think we need more real control over it. And not need to be a master geek to protect ourselves from intrusion. How is it any different from someone invading your house? And for that you have protections (eroding, but on the books anyway).

What a sick society--we have to try to figure out ways to thwart the government from unwarranted intrusion into our lives. We need our own controls.

[merrily]

49. Dumping data while you are being taken into custody would be quite the feat.

[backscatter712]

56. There are apps out there that let you remote wipe your phone...

If it's lost, stolen or confiscated.

[NuclearDem]

33. Getting a warrant is so hard. :( why do you want our cops to work hard. :(

[blackspade]

36. This would have been a perfect opportunity for the administration to

come down on the side of civil liberties and argue in support of the 1st circuit ruling.

But, alas, instead they just have to continue down the authoritarian road.

[geek tragedy]

38. Is it really that huge of a stretch that when you arrest someone, looking at their cell phone

is no different than their day planner or address book?

[merrily]

50. The United States Circuit Court of Appeals thought it was.

[RedCappedBandit]

51. Yes. A cell phone is a computer, not a notebook.

[geek tragedy]

58. Or, one could argue it's an updated version of the PDA. nt

[reflection]

39. I have a password on my phone

both in case it's stolen, but also in case a zealous cop decides to go through my phone.

Now, I'm not naive enough to think that the password can't be cracked, but they're going to have to work to get inside my phone. I'm not just going to give it to them.

[dotymed]

40. So The Gestapo

with their "license and DUI check-points", should (according to this administration) be able to search our cell-phones and make arrests based on that search?

WTF? How can any American agree with that?

The damned check-points are illegal. See how they gradually take more of our freedoms from us?

I wonder if this erosion of our freedoms is on a PNAC schedule?

IMO, this is disgusting and (used to be very un-American), land of the free? Bullshit.

"You MUST stop here so we can check your papers."
It does not matter that driving is considered "a privilege", Freedom and the fourth amendment are rights guaranteed to every American!

[Arctic Dave]

41. That's my Bush!

Needs to be updated.

[avaistheone1]

61. So true!

[damnedifIknow]

42. What's next is

they will have us go to a website and record our daily activities along with uploading our pictures... reading our emails and listening to our phone conversations.

[Harmony Blue]

45. Bad timing is bad...

that is all.

[HooptieWagon]

46. Perfectly in line with Big Bro's legacy.

The POTUS who shredded the BoR. If they don't rein him in, the Democratic Party is going to be wearing this ball and chain for a very long time.

[JRLeft]

52. You best believe this pro fascist court will go along with trampling our 4th amendment rights

[Little Star]

53. WTF!

[treestar]

63. A normal legal question

The government always takes the side in fa of a search and the defense always takes the side against.

[WillyT]

67. And The Hits Just Keep On Comin...

& Rec !!!