on California's police state

[acroyear]

Court: No warrant needed to search cell phone - The Red Tape Chronicles - msnbc.com:

Posted: Tuesday, January 4 2011 at 05:45 pm CT by Bob Sullivan

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.

Keep in mind that this is just the state court applying the state's constitution.  State courts are not required to apply the standards of the Federal Constitution in making their decisions on such matters so it is possible, even likely, that the judge simply ignored SCOTUS precedents on such matters.  Now that this appeals process is done, the defendant can appeal to the Federal court process, where it will go through 3 more trials (local, 9th District, and SCOTUS).

This is a critical issue, in that a phone today is no longer a self-contained object.  It may have cached SMS messages tucked into it, but it also has full access to email servers that may not reside in the state and therefore are out of jurisdiction of the local and state police's investigations.  It also likely will have saved passwords for websites the owner regularly visits - even if the police can't get the paswords, they can get access to the websites they otherwise would need a separate warrant for.

Short term, consider a general password/passcode that's required to even just open your phone, as long as you're in the state.

Comments

[greendalek.livejournal.com]

I already password-lock mine for access and that goes double for the actual stored data; if some cop were to relieve me of it and then inform me that "it's asking for a password," I'd reply with a "Hmmm. How about that?" and then keep my yap shut. Truly, I'd rather a cop destroy my cell phone than snoop around on it.

[acroyear70.livejournal.com]

like i said, the concern is not the stored data - it is that access to the phone gets access to *network* data sitting on servers outside of the local cop's jurisdiction. this puts it square in the face of the other decisions like the recent one that protects your emails from "wiretapping" by them reading it before you do.

[marauderosu.livejournal.com]

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. - The Fourth Amendment to the United States Constitution

[acroyear70.livejournal.com]

so it all comes down to "unreasonable". California does not think it means what the rest of us thinks it means.

[mandrakan.livejournal.com]

State courts are not required to apply the standards of the Federal Constitution in making their decisions on such matters so it is possible, even likely, that the judge simply ignored SCOTUS precedents on such matters. Now that this appeals process is done, the defendant can appeal to the Federal court process, where it will go through 3 more trials (local, 9th District, and SCOTUS).

Unless I am missing something, this is incorrect. Under the Supremacy Clause, State courts are required to apply Federal law, including the Constitution. A State court interpreting its own constitution may give MORE protection than the Federal Constitution requires, but may not give less. The defendant's remaining remedy is to petition the Supreme Court for certiorari on the grounds that the Fourth Amendment prohibits this search incident to arrest.

[acroyear70.livejournal.com]

Yes, state courts are required to. They often don't.