Texas Appeals Court Rules Phone Search After Arrest Violates 4th Amendment [pdf] | Hacker News Reader

Texas Appeals Court Rules Phone Search After Arrest Violates 4th Amendment [pdf]

cca.courts.state.tx.us

171 pointsdriverdan52 comments

Footnote 30, on Page 13, is very very important to understanding the limitations of this ruling; the ruling concerns inventory searches and not the more common searches incident to arrest. If you are arrested, in most locales in the US, it is very likely that evidence taken from your phone at the time of your arrest will stand up in court. Keep your phones secure.

Unfortunately true. When I saw the headline, I was hopeful this was going to be about "incident" searches, and not merely "inventory" searches.

I still don't understand how the reasoning behind "incident" searches, which I'd understood to be primarily about the safety of the arresting officers, would apply to the contents of a mobile device, but that's modern criminal justice for you...

Incident searches are not about the safety of officers (this has come up on HN before). If you follow the cites and the doctrines, it turns out that incident searches have always been about collecting and preserving evidence as much as safety. I think incident searches get confused with Terry stops, which are solely meant to be about officer safety.

The unique issue at play in incident phone searches is the notion that a phone is a little like your house; that if you're arrested during (say) a traffic stop, the police don't have the authority to drive to your house and search it too. Similarly, if you're arrested at a traffic stop, getting access to your trunk can be legally iffy too; incident searches are restricted to your immediate vicinity.

This is something SCOTUS is going to resolve next year.

If only there were dogs that could "smell" illegal or incriminating documents on cellphones...

Startup idea? I just need a co-founder who can make some fancy certificates, and we could be in business 'training dogs and issuing 'credentials'!

Keep your phones secure

Ok, so I get arrested and my phone is taken. Lucky for me my phone is encrypted and I was able to shut it off before it left my possession. So I've made it more difficult for the phone to be searched on the spot, but what is preventing the authorities from compelling me to decrypt the phone eventually?

The 5th amendment?

I'm not sure why you are being downvoted for this, unless you are being interpreted as snarky (whereas I interpret you as offering a noncommittal answer).

While it has not been settled in court yet, IIRC, the 5th amendment right against self-incrimination is the legal rationale used to argue against forced decryption [1].

[1] https://www.eff.org/deeplinks/2013/10/new-eff-amicus-brief-a...

I was tentative because the direction that two centuries of case law has taken the bill of rights often surprises me.

Thanks for the link. I googled for a bit to see if there had been a decision by the Massachusetts Supreme Judicial Court, but it doesn't appear so.

I watched a bit of the oral argument [1] from last November, and the state's argument was that since they were only asking for an order for the defendant to decrypt the data (not hand over the decryption key), the the defendant's 5th amendment rights would not be violated.

[1] http://www2.suffolk.edu/sjc/archive/2013/SJC_11358.html

Lots of things. Namely, they can't prove that you are even able to.

Sure they can. When they find your fingerprints on it, your name on the bill, people willing to testify that they consider the number that the phone is associated with to be yours, etc.

It's not bulletproof like some sort of mathematical proof, but the law operates with much looser standards of proof.

What if I implemented a dead-man's switch so that if I don't respond regularly, it will be impossible for me access data?

There are so many things that can be done digitally that bump up against the first, fourth, and fifth amendments as well as laws about the destruction of evidence. It's a mess.

Are you asking what would actually happen if you did this, or what would happen if you told the courts that you could not let them into your phone because you did this?

Then there's the case of destruction of evidence. Depends on a number of circumstances, possibly including whether or not it takes a positive act or merely the lack of an action, on your part, to ensure the data continue to exist.

I didn't say they can't prove the phone belongs to you. They cannot prove that you know or remember the decryption key.

Additionally, in U.S. case law there is a precedent for 5th amendment protections applying to being forced to reveal encryption keys:

https://www.eff.org/press/releases/appeals-court-upholds-con...

The point here, if I'm not mistaken, has to do with search warrants and what evidence is admissible in court.

I also enjoyed the footnotes, like #19;

"Alderman v. United States, 394 U.S. 165, 176-80 (1969) (a person’s property interest in his own home was so great as to allow him to object to electronic surveillance of conversations emanating from his home, even though he himself was not a party to the conversations)."

In Canada, if the phone has a password police need a search warrant to go through it.

Whats more alarming is he was a high school student who got arrested for a disturbance on a bus:

> One morning, Anthony Granville was arrested for the Class C offense of causing adisturbance on the school bus. His cell phone was taken from him during the bookingprocedure and placed in the jail property room.

> Whats more alarming is he was a high school student who got arrested for a disturbance on a bus

That's a pretty vague term. We don't know what, exactly, his disturbance on a bus consisted of.

Agreed, a "disturbance" on a moving vehicle has the potential to be rather serious. If it was hitting some other kid with a spitball then an arrest would be unreasonable, but something interfering with the driver would be much more serious.

The subsequent felony charge of "Improper Visual Photography" charge was more alarming; here's the statute, though:

http://codes.lp.findlaw.com/txstatutes/PE/5/21/21.15

This actually sounds like a sane law.

Sounds alarming for sure, but agreed sounds worthy of criminal investigation.

It sounds like there was a dispute over a sexting picture of most likely a girl at the school. The police were called probably from yelling. Not fighting as there is no assault charge. They most certainly heard about the photo but didn't do anything about that at the time.

The issue I take is the fact he was put in a jail cell for the disturbance part. Which was the primary factor allowing the police freedom to do what would otherwise be considered violating his rights, during a typical police stop.

"Texas Appeals Court Rules Phone Search". This title is a garden-path sentence. http://en.wikipedia.org/wiki/Garden_path_sentence

How so? What is the misleading interpretation here?

I parsed it correctly because I'm used to reading about appeals courts ruling on things, but one could take "rules" as a noun and "phone" as a verb (the court's rules telephoned a search to let the search know that it was illegal?).

"Search" could also be a verb, but that makes it more of a stretch (even if we envision a kind of phone called a "rules phone", there would be a singular/plural agreement problem in taking it as the subject of "search").

Exactly -- this is just the context of the word rules; when you read legal stuff you know to go instantly to the other meaning.

It doesnt mean that the language is misleading but rather that the natural parsing of the language is wrong.

I.e. we naturally parse this sentence as "(Texas) Appeals (Court Rules Phone Search)" which is wrong. The correct parse is "(Texas Appeals Court) Rules (Phone Search)". I.e. at first glance we think that "appeals" is a verb rather than an adjective.

For the first example to parse, wouldn't it need to be "(Texas) Appeals (Court's Rule of phone search)..." or something along those lines? That is, the grouping doesn't parse correctly without at least a possessive apostrophe which the Title lacks. I'm failing to detect a correct parsing under the grouping you offer. I'm not sure that a parsing path that requires parsing errors can be considered the more likely for the reader to take. In my case, I parsed it correctly from the beginning.

You're missing the point. It's not that the sentence has to have multiple logical interpretations; it's that your brain begins to parse it one way and then comes to words that don't fit that interpretation. I had to jump back to the beginning twice because I assumed "appeals" was the verb at first.

OK, that makes sense. I guess then I'm not sure whether this was meant as a criticism of the title or just pointing out the feature. Since "Texas Appeals Court" is a single entity, it seams like a reasonable way to begin the headline, especially given the general convention that headlines avoid unnecessary prepositions such as in the possible alternative "Appeals Court in Texas". To my reading, the garden path ends at the third word, which doesn't seem too terribly bad for a headline. Perhaps I'm missing some subtle annoyance though.

Unambiguous headline:

Texan Appellate Court Rules That Searching the Telephones of Arrestees Violates 4th Amendment Protections

I still don't understand the title.

Is "The Texas Court of Appeals rules that phone searches after a suspect is arrested violates the 4th Amendment" clearer?

Unfortunately that's too long to fit in the title.

Just hyphenate:

Texas Appeals-Court Rules Phone-Search After Arrest Violates 4th Amendment [pdf]

(Texas Appeals Court) Rules (((Phone Search) After Arrest) Violates (4th Amendment))

My brain quickly went through the following process:

(Texas) Appeals (Court Rules Phone...) nope.

(Texas Appeals) Court (Rules Phone...) nope.

(Texas Appeals Court) Rules (Phone Search...) yes.

Most of the words can not only both be verbs and nouns, but many appear to conjugate correctly as verbs when the preceding word is interpreted as a noun: "Texas Appeals", "Appeals Court", "Court Rules", "Rules Phone"*

*"Rules Phone" doesn't make as much sense, as rules are typically unable to phone anything, including searches.

This was exactly my parse tree as well.

I had different trouble.

.. (Appeals Court) Rules (Phone Search) After (Arrest Violates 4th Amendment) --nonsense

"phone search after arrest" is terribly confusing, though "post-arrest phone search" is clunky.

"Appeals Court" is probably the strongest 2-gram in the headline:

https://books.google.com/ngrams/graph?content=texas+appeals%...

News coverage on today's ruling: http://www.statesman.com/news/news/texas-court-expands-cell-...

EFF story on the case from a year ago when the case was going to trial: https://www.eff.org/deeplinks/2013/04/eff-texas-high-court-c...

The EFF post gives some background on the case in question.

Skimming the ruling, this is pretty much exactly the line of reasoning I'd hoped a court would use in considering these issues. Yes, it turns out, a phone is not just like a pair of pants. Who knew?

Google Cache: http://webcache.googleusercontent.com/search?q=cache:http://...

Interesting to see the conversations in the court room. You'd think they'd be more intellectual or high minded. You'd think they would cite specific law nomenclature or cases. But it really is just off the cuff opinions being thrown about.

Texas is doing better than California on this issue: http://www.petersesq.com/2014/02/cell-phone-searches-ca-vs-t...

Page 13 ref 29: Is this saying that I am exempt from unreasonable search if it is known that I let others(someone) use my phone. That by letting someone use it I no longer assume the "expectation of Privacy"?

So it seems cop screwed up. He could obtain proper search warrant, but he did not. So phone search is allowed, just as usual, with proper warrant. Otherwise - it is illegal search.

I'm not sure I see where the officer had sufficient cause for that warrant. It sounds like the subsequent felony charge was unrelated to the original offense.

This is exactly the point of getting a warrant: to have this dialogue with a judge.

have another link anywhere?

I'm catching an internal server error trying to find that PDF.

Here's a Google Drive link for online viewing: https://drive.google.com/file/d/0Bz_UAHWnblkuSmZtSVhDQldUb3c

Oh boy, the last time I saw an official state of Texas site give a 500 error it stayed that way for a month...

Texas rocks!

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