but it bears reposting
Phone data offlimits without a warranrt
Cops just cannot grab the phone from you and look at the data. They have to have a warrant to collect it and access it.
If you willingly give to them, then no warrant needed.
So do not hand it over when they ask.
And if they ask and you refuse.. WIPE the data as soon as you can.
- Capt. Lincoln F. Stern
- 08-25-2011, 10:39 AM
- LexusLover
- 08-25-2011, 01:02 PM
FYI: #1: A decision by a U.S. District Judge in the Eastern District of New York does not control the Southern District of Texas or the State of Texas.
#2: One ought to read the opinion regarding the information sought, the circumstances under which the information was sought, and the statutory basis for the disclosure or nondisclosure of the information.
#3: Like almost all 4th amendment cases the facts dictate the value of the case, because of the various exceptions to the 4th amendment requirement of a search warrant that the U.S. Supreme Court and State courts have consistently recognized for roughly 80 years.
#4: If one is detained or arrested, the cop can take the phone and retain it until a search warrant can be obtained to "open" it....just like they can the trunk of your car and the brief case in your car.
I hope no one actually believes that this opinion "protects" data in their phone ... if you do, carry a copy of this opinion with you wherever you go with your phone and when "the cop" tries to take it from you show "the cop" the opinion that says he can't!
On a political note:
The current administration was pursuing this "intrusion."
#2: One ought to read the opinion regarding the information sought, the circumstances under which the information was sought, and the statutory basis for the disclosure or nondisclosure of the information.
#3: Like almost all 4th amendment cases the facts dictate the value of the case, because of the various exceptions to the 4th amendment requirement of a search warrant that the U.S. Supreme Court and State courts have consistently recognized for roughly 80 years.
#4: If one is detained or arrested, the cop can take the phone and retain it until a search warrant can be obtained to "open" it....just like they can the trunk of your car and the brief case in your car.
I hope no one actually believes that this opinion "protects" data in their phone ... if you do, carry a copy of this opinion with you wherever you go with your phone and when "the cop" tries to take it from you show "the cop" the opinion that says he can't!
On a political note:
The current administration was pursuing this "intrusion."
- Capt. Lincoln F. Stern
- 08-25-2011, 01:28 PM
What this does indicate is that Supreme courts are recognizing that personal privacy extends to our smart phones which some act as lour wallets with electronic ID's...
- LexusLover
- 08-27-2011, 06:38 AM
What this does indicate is that Supreme courts are recognizing that personal privacy extends to our smart phones which some act as lour wallets with electronic ID's... Originally Posted by Spirit13The EDNY has nothing to do with what the "Supreme courts" are recognizing.
My recommendation is that we all treat our cell/mobile communication devices as sources of information for LE until THE Supreme Court says absolutely "NO" under any circumstances. THE Supreme Court has for about 80 years now, through liberal and conservative majorities, crafted exceptions to the 4th Amendment requirement of a search warrant and have done so for exactly the same reason cell/mobile phones have caught on in this country and around the world .... mobility and exigent events.
Unless one desires to be the "test case" ... then I would play it conservative and not get too over joyed about some tangent by EDNY.
"We" live in Texas. If anyone on here thinks that a Texas judge gives a rat's ass about what a New York (Yankee) judge thinks, Federal or otherwise, then ask them next time you are standing in front of them challenging the Texas LE right to search you and your phone when you get busted.
My #2 recommendation: Ask the judge politely.
- Capt. Lincoln F. Stern
- 08-27-2011, 07:22 AM
Federal laws often times override state laws.. Take the CHL for example...There are some places that the Federal statute forbids even though the state allows... care to challenge that in front of a state judge?
Fact is that if they want to convict you they will use whatever statute fits the bill.
This post was not to start another argument with you LL, cause we both know what that will end being. It was meant to point out that a Supreme court ruled that the cops did not have the right to search a cell phone with out a warrant... Oddly enough it concerned Verizon.... who by the way if you had not noticed their coverage goes BEYOND the area the Supreme judges reach.. even down to oh... TEXAS.
So if you have Verizon and a cop wants to use your cell phone contents against you.. just remember, A Federal Judge up north said he has to have a search warrant, but because you live in Texas and you do not believe what a Federal Judge says covers Texas and only State laws apply, then he can use it against you.
personally I have my phone locked and like a Blackberry, if you enter the code in wrong X number of times, it WIPES ALL DATA. I can restore from my carrier but only after I verify who I am. The cops cannot do that without me.
Fact is that if they want to convict you they will use whatever statute fits the bill.
This post was not to start another argument with you LL, cause we both know what that will end being. It was meant to point out that a Supreme court ruled that the cops did not have the right to search a cell phone with out a warrant... Oddly enough it concerned Verizon.... who by the way if you had not noticed their coverage goes BEYOND the area the Supreme judges reach.. even down to oh... TEXAS.
So if you have Verizon and a cop wants to use your cell phone contents against you.. just remember, A Federal Judge up north said he has to have a search warrant, but because you live in Texas and you do not believe what a Federal Judge says covers Texas and only State laws apply, then he can use it against you.
personally I have my phone locked and like a Blackberry, if you enter the code in wrong X number of times, it WIPES ALL DATA. I can restore from my carrier but only after I verify who I am. The cops cannot do that without me.
- pyramider
- 08-27-2011, 07:28 AM
Good luck with that . . . As an old high school buddy used to say, "you might beat the rap, but you cannot beat the ride."
- Jackie S
- 08-27-2011, 07:39 AM
Federal Law ALWAYS trumps State Law. A State cannot pass a Law that is contrary to Federal Law. Of course, it usually has to make it's way through the Court System before a final determination can be reached.
Where people get confused is when a Federal Law has stipulations that exempt certain State Provisions.
Firearms Laws are a good example. The Federal Government can place a ban, or stipulate a certain liscense to possess a particular firearm, such as a full automatic weapon. A State cannot then pass a law saying it's residents can contrary to the Federal Provision.
EPA Laws are another good example. Look at the hell such States as Texas go through because of unwanted, and often, unwarranted EPA restrictions.
The 55 mph Speed Limit was a classic case. Some States fought it, but to no avail. Sammie Haggar said it best.
Where people get confused is when a Federal Law has stipulations that exempt certain State Provisions.
Firearms Laws are a good example. The Federal Government can place a ban, or stipulate a certain liscense to possess a particular firearm, such as a full automatic weapon. A State cannot then pass a law saying it's residents can contrary to the Federal Provision.
EPA Laws are another good example. Look at the hell such States as Texas go through because of unwanted, and often, unwarranted EPA restrictions.
The 55 mph Speed Limit was a classic case. Some States fought it, but to no avail. Sammie Haggar said it best.
- Capt. Lincoln F. Stern
- 08-27-2011, 07:54 AM
My point exactly.. Things like this do not happen over night, and it starts with a major case usually.. cops would like nothing better than to toss out the 4th and 5th amendment but what I find is if you know your rights etc and what a cop can and CANNOT do with a suspect or while he is speaking to you, then they might not like you but he will realize that you can register a complaint with his boss that will stick on his record which makes his life a bit more difficult.
- LexusLover
- 08-27-2011, 10:02 AM
- LexusLover
- 08-27-2011, 10:03 AM
- Capt. Lincoln F. Stern
- 08-27-2011, 11:16 AM
That is the purpose of file 13 .....when you file a complaint, you get a copy of it, with all the official stuff on there. If his boss files it in "file 13" as you put it, then you have a duplicate. Another thing that you over look is what if the conversation was recorded of you speaking to his boss? Hard for the boss to deny the meeting happened or that the paper got filled out etc... and I seriously doubt he will take a rap for his junior officers.
... as for Federal law "trumpting" state law ... hide and watch "ObamaCare" .. and the list goes on. Originally Posted by LexusLover
ever see one of THESE ?
point is that if you can prove a cop said something or did something.. like take for example This story - a surveillance camera caught it, in a public area, the cops had no expectation of privacy but yet they objected to the video. Of course they are going to object to it.. it showed THE COPS breaking the law.
Yes you might be the RAP but you don't beat the ride.. however when you BEAT the RAP, you can file the complaint against the cop, or worse file a lawsuit etc... point is that the Federal Supreme courts are now looking at giving back our rights that the law seems to trample on.
When the police gets out of control, who polices the police?
- LexusLover
- 08-27-2011, 12:33 PM
Most of the folks down at the jail, on the way to prison, "know the law," just ask them. The rest of them are "smarter" than the police, and at least half of all of them want to sue LE for violating their "civil rights" ...
... it's too bad they cannot afford to pay an attorney to "right their wrongs" .... it would sure help the economy, if they did, and they would still be in prison.
I certainly would not be citing a EDNY judge as authority for what the U.S. Supreme Court is going to do, and I recommend, again, that until the USSC rules that "we" have an abosolute right of privacy on our cell phones, the information in our cell phones, and the data stored at our cell phone provider main frames, then I would "pretend" that the police can get it all and act accordingly.
But there is a silver lining in every cloud, and if one doesn't want to take the prudent approach and one wishes to chase windmills on "principles," then one will be spending a lot of money on attorneys' fees, which helps the local economy, which is spelled .... "principal."
Freebies are rare around here, but ....
United States vs. Finley (5th Ciruit, January 2007).
“It is well settled that “in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” United States v. Robinson, 414 U.S. 218, 235 (1973). Police officers are not constrained to search only for weapons or instruments of escape on the arrestee’s person; they may also, without any additional justification, look for evidence of the arrestee’s crime on his person in order to preserve it for use at trial. See id. at 233-34. The permissible scope of a search incident to a lawful arrest extends to containers found on the arrestee’s person. United States v. Johnson, 846 F.2d 279, 282 (5th Cir. 1988) (per curiam); see also New York v. Belton, 453 U.S. 454, 460-61 (1981) (holding that police may search containers, whether open or closed, located within arrestee’s reach); Robinson, 414 U.S. at 223-24 (upholding search of closed cigarette package on arrestee’s person). Finley concedes that the officers’ post-arrest seizure of his cell phone from his pocket was lawful, but he argues that, since a cell phone is analogous to a closed container,6 the police had no authority to examine the phone’s contents without a warrant. He relies on Walter v. United States, 447 U.S. 649 (1980), for this proposition. Walter, however, is inapposite because in that case no exception to the warrant requirement applied, see id. at 657, whereas here no warrant was required since the search was conducted pursuant to a valid custodial arrest, see Robinson, 414 U.S. at 235. Special Agent Cook was therefore permitted to search Finley’s cell phone pursuant to his arrest.”
The Fifth Circuit approved that holding in March 2011 (this year) in United States vs. Curtis in which text messages were obtained from the defendant’s cell phone after he was arrested. In Curtis the 5th Circuit pointed out that four other Federal appellate court circuits agreed with that position regarding cell records being obtained without a warrant.
Texas state opinions are like minded. [For those unaware: 5th circuit covers Texas]
... it's too bad they cannot afford to pay an attorney to "right their wrongs" .... it would sure help the economy, if they did, and they would still be in prison.
I certainly would not be citing a EDNY judge as authority for what the U.S. Supreme Court is going to do, and I recommend, again, that until the USSC rules that "we" have an abosolute right of privacy on our cell phones, the information in our cell phones, and the data stored at our cell phone provider main frames, then I would "pretend" that the police can get it all and act accordingly.
But there is a silver lining in every cloud, and if one doesn't want to take the prudent approach and one wishes to chase windmills on "principles," then one will be spending a lot of money on attorneys' fees, which helps the local economy, which is spelled .... "principal."
Freebies are rare around here, but ....
United States vs. Finley (5th Ciruit, January 2007).
“It is well settled that “in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” United States v. Robinson, 414 U.S. 218, 235 (1973). Police officers are not constrained to search only for weapons or instruments of escape on the arrestee’s person; they may also, without any additional justification, look for evidence of the arrestee’s crime on his person in order to preserve it for use at trial. See id. at 233-34. The permissible scope of a search incident to a lawful arrest extends to containers found on the arrestee’s person. United States v. Johnson, 846 F.2d 279, 282 (5th Cir. 1988) (per curiam); see also New York v. Belton, 453 U.S. 454, 460-61 (1981) (holding that police may search containers, whether open or closed, located within arrestee’s reach); Robinson, 414 U.S. at 223-24 (upholding search of closed cigarette package on arrestee’s person). Finley concedes that the officers’ post-arrest seizure of his cell phone from his pocket was lawful, but he argues that, since a cell phone is analogous to a closed container,6 the police had no authority to examine the phone’s contents without a warrant. He relies on Walter v. United States, 447 U.S. 649 (1980), for this proposition. Walter, however, is inapposite because in that case no exception to the warrant requirement applied, see id. at 657, whereas here no warrant was required since the search was conducted pursuant to a valid custodial arrest, see Robinson, 414 U.S. at 235. Special Agent Cook was therefore permitted to search Finley’s cell phone pursuant to his arrest.”
The Fifth Circuit approved that holding in March 2011 (this year) in United States vs. Curtis in which text messages were obtained from the defendant’s cell phone after he was arrested. In Curtis the 5th Circuit pointed out that four other Federal appellate court circuits agreed with that position regarding cell records being obtained without a warrant.
Texas state opinions are like minded. [For those unaware: 5th circuit covers Texas]
- Capt. Lincoln F. Stern
- 08-27-2011, 03:54 PM
Ya know.... I post about a court ruling that could lead to stricter procedures for cops when it comes to our phones, and other electronic devices and yet LL wants to negate the positives. I am not going to REPEAT myself as to my opinion of LL again but the post was to inform people about something that can impact our lives and he seems to want use to be sheeple.
Do I recognize that this is not Texas law sure.... but when it comes to laws at the Federal level, if it exists at a FEDERAL level as being allowed or not and your state differs, you can appeal it in most cases... even if its a silly sting operation for prostitution. If there is case law on point at the federal level you can argue that in a STATE court saying that a higher court than this one ruled that it was illegal for a cop to access a smart phone with out a warrant. And surely if at the FEDERAL level where the FEDERAL cops (also know as the FBI ) have to get a warrant then it is reasonable for a state cop or a city cop to do the same? Lets face it, the FBI is not about go bust you for seeing a provider, however if that provider is mixed up in organized crime or a serious drug dealer then its different. A state cop or city cop is out to make a collar, but he has to follow guidelines of of the law.
State laws are more open for interpretation that Federal ones I am sure, but our RIGHTS are not STATE rights, they are Constitutional RIGHTS guaranteed at the FEDERAL level. That means if you travel to a different state those rights go with you. Some laws differ state to state but the 4th amendment is in the US constitution which is spelled out here :
'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.' - Notice "Things" a vague word that covers everything from your wallet / purse and even something like a SMART phone.
The framers of the Constitution were not dummies.
LL, you and I have not agreed on things, and probably never will but on the 4th amendment it would seem that it was meant to protect a citizen from having a cop from grabbing items on your person and then convicting you of what they found based on "Luck" A cop cannot search you or your car if he pulls you over for a busted tail like because he "feels like it" but if you act weird, or they smell drugs, then he has probable cause.
You driving by a house of ill repute or parking in a parking lot that has an AMP in it does not mean you are guilty of seeing the house of Ill repute.
they seeing you leave the place or see you go in.. that is different in which case if they know what is going on, why have they not busted it yet, and if they do not know, them hassling you on an "idea of what goes on" is harassment
Do I recognize that this is not Texas law sure.... but when it comes to laws at the Federal level, if it exists at a FEDERAL level as being allowed or not and your state differs, you can appeal it in most cases... even if its a silly sting operation for prostitution. If there is case law on point at the federal level you can argue that in a STATE court saying that a higher court than this one ruled that it was illegal for a cop to access a smart phone with out a warrant. And surely if at the FEDERAL level where the FEDERAL cops (also know as the FBI ) have to get a warrant then it is reasonable for a state cop or a city cop to do the same? Lets face it, the FBI is not about go bust you for seeing a provider, however if that provider is mixed up in organized crime or a serious drug dealer then its different. A state cop or city cop is out to make a collar, but he has to follow guidelines of of the law.
State laws are more open for interpretation that Federal ones I am sure, but our RIGHTS are not STATE rights, they are Constitutional RIGHTS guaranteed at the FEDERAL level. That means if you travel to a different state those rights go with you. Some laws differ state to state but the 4th amendment is in the US constitution which is spelled out here :
'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.' - Notice "Things" a vague word that covers everything from your wallet / purse and even something like a SMART phone.
The framers of the Constitution were not dummies.
LL, you and I have not agreed on things, and probably never will but on the 4th amendment it would seem that it was meant to protect a citizen from having a cop from grabbing items on your person and then convicting you of what they found based on "Luck" A cop cannot search you or your car if he pulls you over for a busted tail like because he "feels like it" but if you act weird, or they smell drugs, then he has probable cause.
You driving by a house of ill repute or parking in a parking lot that has an AMP in it does not mean you are guilty of seeing the house of Ill repute.
they seeing you leave the place or see you go in.. that is different in which case if they know what is going on, why have they not busted it yet, and if they do not know, them hassling you on an "idea of what goes on" is harassment
- Sarunga
- 08-27-2011, 05:15 PM
Guys, this is not a bad discussion....I'm learning stuff from both sides. Thanks.
- LexusLover
- 08-27-2011, 05:30 PM
A cop cannot search you or your car if he pulls you over for a busted tail like because he "feels like it" but if you act weird, or they smell drugs, then he has probable cause. ... Originally Posted by Spirit13The problem I have at times with some of the postings on this board about "the law" is what I call "Reader's Digest law" blended with a lot of wishful thinking.
The initial statement that began this thread was based on EDNY case that is not on point for a hobbyist or provider in Houston, Texas. Period.
I believe that the United States Supreme Court will continue to uphold the concept of "officer safety" and provide LE with the privilege of searching for weapons and taking into their possession any thing that can possibly be a weapon or concealing one. Terry vs. Ohio allowed that privilege without probable cause and without an arrest. Just a contact.
This is not a constitutional law class, if you want one go to law school. And until you graduate from law school and practice criminal law for awhile, I would not be giving people legal advice that they might rely upon, which is wrong. I just quoted a Fifth circuit case which is a Federal case and which was re-affired by a 2011 Federal case ... Texas law is consistent with it. Dragging up philosophy won't carrey the day.
Ever seen one of these? Cell phone with a four shot pistol built into it?
First it was pagers. Now its cell phones.
Your cell phone is going to be taken when you are arrested. If it's not, the officer ought to be fired.
If the officer is engaged in a "Terry stop" he should take your cell phone until it is over, just like he should take your concealed handgun until the "contact" is complete. It is a matter of officer safety and the U.S. Supreme Court gives it the green light. See Terry vs. Ohio, et seq.
My only interest in this discussion (or similar ones) is to attempt to correct some bad information, so some idiot won't go out here believing his "phone" cannot be "searched" by the police, because some judge in EDNY says there is an "expectation of privacy" in a cell phone. Which does not mean what is on the cell phone is protected .. it only means that 4th amendment protections are in play WITH ALL of the case law exceptions to a search warrant .... that have been developed for the last 80 years. And will not be wiped out even if Obie packs the Court.