Yet police can legally impersonate you if they have your cell. Police in WA state confiscated a cell from a dealer, read past messages, then set up new deals to arrest the users.
The police do not need a warrant to search suspects incident to their arrest. Contrary to message board expectations, it is for that reason among many others that the police will not arbitrarily place you under arrest; arrest is a big deal. If the police arrest you unlawfully and discover key evidence of a major crime, your showing in court that the arrest was unlawful can undo their case.
Seems like you could get one cop on the inside and get a get out of jail free card--murder someone, have him search your house without a warrant, find tainted evidence, suddenly you are immune from prosecution.
Usually you're not immune from prosecution; they just suppress the evidence collected in that search so that it cannot be used against you (this is a simplification; there are a number of reasons why this evidence can be used against you anyway, generally amounting to `they would have another legal way of discovering the same fact about the crime').
A salient difference in that example was that the owner was arrested and the device confiscated in the process - the activity happened on a device already in police custody. In the example in this article, there was no arrest until the phone was examined.
They manifestly cannot do their work without resorting to deception. Virtually all policework above the level of street patrols turns in one way or another on some flavor of deception.
Savage reasoned that cell phone contents are deserving of Fourth Amendment protection against unreasonable searches and seizures because people generally keep them on their person at all times. "Text messages are often raw, unvarnished, and immediate; revealing the most intimate of thoughts and emotions to those who are expected to guard them from publication," she wrote, further stating that the court "does not find that the remote possibility that an unintended party will receive a text message due to his or her possession of another person‘s cell phone is sufficient to destroy an objective expectation of privacy in such a message
This seems like one of these decisions that defy reality.
In this case the phone was not being kept on the person, and yet the judge writes that phones are expected to be kept on the person contra reality.
If people expect text messages to be delivered immediately, they are wrong. Their expectation doesn't change reality.
If some people expect text messages to be kept private, they are wrong. Their expectation doesn't change reality.
If the cop found the cell phone, beeping, with a new message and that message was incriminating, I have no problem with it being used against them.
If the cop picked up the phone, beeping, with a new message, and then pressed buttons to get to the messaging functions where he then read the incriminating message, that is much more problematical.
If people think their text messages are private, they are just wrong.
The "reasonable expectation of privacy" is critically important to the interpretation of the 4th Amendment in criminal controversies. Reasonable people, like it or not, do expect that their text messages are private.
It's a rather self-defeating view of the 4th Amendment that suggests that, because the government could easily gain access to a piece of data, that data must therefore not be private. The government can easily get access to most data.
It's a rather self-defeating view of the 4th Amendment that suggests that, because the government could easily gain access to a piece of data, that data must therefore not be private. The government can easily get access to most data.
Good thing I never said that then!
I said we shouldn't write laws that defy physics. Judges should not write laws that say people hold their phones on their persons at all times when we know that not to be the case. Judges should not write laws that text messages are to be considered private when all of us know that the next person we hand our phone to can trivially (without government equipment) read our messages.
Your example: the next person we hand our phone to. Describes deliberate, consensual, sharing with intent etc. This is weak. And beside the point. Its irrelevant. Also: (1) Telecommunications networks are closed networks. They are not "broadcast media". On mobile, they are encrypted. That's why there are warrants required. There is an inbuilt expectation of privacy. SMS transmit in the header information of private lines. This isn't really a debating point. (2) Judges should not write laws... They don't. Democratically eleceted legislators pass laws, that are signed by a similarly elected executive. Subject to constraints of the constitution, and judicial review &tc.
>If some people expect text messages to be kept private, they are wrong. Their expectation doesn't change reality.
Let's try it this way: If some people expect phone calls to be kept private, they are wrong. Their expectation doesn't change reality.
The presence of surveillance doesn't negate the expectation of privacy.
>In this case the phone was not being kept on the person, and yet the judge writes that phones are expected to be kept on the person contra reality.
So when you put your phone in the bin to go through a metal detector, your phone records, text messages, email accounts, Dropbox account, social media accounts, and anything else accessible from your smartphone is fair game for the state?
If some people expect phone calls to be kept private, they are wrong. Their expectation doesn't change reality.
The phone call itself is private. GSM Cell phone calls are encrypted (is that still unbroken for most people??) Recording is governed by laws that specify for each state how private it is. The police need to get warrants to record.
So when you put your phone in the bin to go through a metal detector, your phone records, text messages, email accounts, Dropbox account, social media accounts, and anything else accessible from your smartphone is fair game for the state?
I am looking at the bin, and I will not let anyone pick up the phone. A cop seeing a phone on a coffee table blinking away with a message on the face of it seems very different to me than what you have described. (I am speculating about several aspects of that vis a vis the actual case.)
Traditional landline calls are not encrypted. Do they not get the same expectation of privacy?
What if you are using a landline with a 90s style cordless phone? No encryption there, those things just spewed analog RF like baby monitors and cordless microphones. You can easily pick up those signals from the street; even further if you want to get slightly fancy with your antenna.
For a time it was legal to intercept those cordless phone conversations, since they were being broadcast over public airwaves. I forget if the legislature changed that before the industry moved their tech away from that kind of infrastructure.
I fully agree that "because someone else can read it, it's not private" is a bad argument.
If the suspect had a screen lock, would that create a reasonable expectation of privacy?
Would you have a problem with an officer opening a suspect's mail at the scene of an incident? Ripping paper is just as little effort as hitting buttons on a phone.
De facto privacy is very different from this legal concept of "expectation of privacy". Obviously a man with a gun can violate your de facto privacy easily. The question is, what boundary are you going to put on the legitimacy of that activity?
We don't require warrants to violate your de facto privacy - we require them to violate your legal expectation of privacy.
If the suspect had a screen lock, would that create a reasonable expectation of privacy?
Yes, I think so. If the message was just displayed there, and the phone is not in the person's pocket, I don't see any more privacy for that than a post-it note on a refrigerator.
Re: the envelope, if the cop is pressing buttons to access an unlocked phone, as I said, I think that's problematical without a warrant.
We don't require warrants to violate your de facto privacy - we require them to violate your legal expectation of privacy.
But I am not sure we should require warrants to protect privacy that doesn't actually exist in any manner in normal de facto space.
One reason I definitely want to see Android n+1 have multiple user accounts is because of the terror that strikes in all of our hearts when we hand our phones to a friend to borrow.
The officer discovered the phone in a room in the apartment he had not been invited to. The officer had, at the time, no evidence of wrongdoing by the boy's caretakers. The officer claimed the phone "beeped", whereupon he picked it up, opened it, clicked past an error message about a past-due bill, and then scrolled through the message history on the phone.
I think the idea behind this particular ruling was setting a precident of "it's not okay to do this", so that later on when a police officer or whatever does use this information in an improper way, it is clear that, sorry, this isn't allowed. Remember, the law is a big stick, not a fine-tuned scalpel, and you have to use it/decree upon it as such.
"In addition, this Court finds that the Defendant made a preliminary showing that numerous sworn statements made by police officers in a dozen warrant affidavits were either deliberately false or made in reckless disregard of the truth..."
A pattern of abuse, seems to be part of the issue here.
What I am confused on, and maybe there is something missing from the story, but it sounds like the office stumbled upon those text messages in his normal activities. I don't know much about the law but I assumed what he did was okay.
Was he over stepping his bounds in answer someone else phone or was it that the court didn't believe he was doing it only to get to touch with the birth father?
Absent a warrant or an arrest, the police cannot use your phone to "get in touch" with one of your contacts and then derive evidence against you from that action. That seems sensible to me.
I'm curious as to why this didn't fall under inevitable discovery? I imagine that a dead 6 year old, having received blows to the stomach, would warrant an actual investigation and (most likely) the phone records of everyone at the scene could have been subpoenaed.
Inevitable discovery doesn't generally apply to primary evidence, which this clearly was: the officer saw the phone, picked it up, and searched it without even an incident arrest, let alone a warrant.
I am curious about how HIPAA plays into this - specifically, if the doctors did not contact the police stating that the injuries required further investigation, was there any further basis for investigating wrongdoing by the parents?
1) Generally speaking, a dead kid gives the police a LOT of leeway.
2) If they suspected somebody at the scene of having knowledge as to the culprit, I think most judges would have allowed them access to phone records for everyone at the scene during the time period in question.
Basically, this wasn't a stoner crossing the border that might have had photos of himself smoking something illegal, this is a dead kid, and I'm pretty sure the cops would have asked for those records in due course. And I'm pretty sure a judge would have said yes.
The kid wasn't dead when the phone was searched, and there was, as the court itself noted, no evidence of wrongdoing apparent the the officer who conducted the illegal search.
But that's besides the point. "Inevitable discovery" does not simply mean what it sounds like on a message board thread. It is not an invitation for the police to sieze everything they can and then come up with a compelling story for how they would have found it anyways. In particular: when the evidence in question is the direct result of an illegal search, its inevitability probably doesn't matter.
If the officer had a grave suspicion of wrongdoing, he had available to him a mechanism to search the phone: he could have arrested its owner or any other occupant of the house. What he can't do, at least without a warrant, is walk around someone's private home without permission and search their belongings. Had the message been flashing on the front of the phone, it would have been in plain sight and probably have been allowed. The message was not in plain sight.
If the phone were face-up on the counter, the text message appeared, and the officer photographed, but did not disturb, the phone, how would the case be different?
http://news.ycombinator.com/item?id=4266538