Police seizure of text messages violated 4th Amendment, judge rules
arstechnica.com
arstechnica.com
Also, notice that GP said "suspect", you said "criminal". Huge difference.
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.
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.
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?
No.
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.)
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.
I fully agree that "because someone else can read it, it's not private" is a bad argument.
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.
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.
IANAL
A pattern of abuse, seems to be part of the issue here.
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?
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.
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.