Privacy v. Technology

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The expanding conflict between constitutional rights and technological advances has taken another turn in Texas. On February 29th, the U.S. Court of Appeals for the 7th Circuit ruled it is now legal for police to search cell phones without a warrant. The United States of  America v. Abel Flores-Lopez arises from the original Indiana case involving Mr. Flores-Lopez, who was arrested for allegedly selling methamphetamine. After being convicted and sentenced to 10 years in prison, Flores-Lopez argued that police had no right to search his cell phone without a warrant. The court disagreed, contending that the invasion of his privacy was not severe enough to be protected by the Fourth Amendment’s ban on unreasonable searches.

This “lack of severity” was due to the fact that the search revealed only the telephone number of the arrestee’s seized cellphone. “If police are entitled to open a pocket diary to copy the owner’s address, they should be entitled to turn on a cell phone to learn its number,” Judge Richard Posner wrote for the three-judge panel. “If allowed to leaf through a pocket address book, as they are…they should be entitled to read the address book in a cell phone. If forbidden to peruse love letters recognized as such found wedged between the pages of the address book, they should be forbidden to read love letters in the files of a cell phone.”

Extrapolating on this cell phone-equals-diary analogy, the judge further contended that both were “containers,” as “any object capable of holding another object…an object that can contain anything else, including data, is a container…And since a container found on the person of someone who is arrested may be searched as an incident to the arrest even if the arresting officers don’t suspect that the container holds a weapon or contraband, and thus without any justification specific to that container…the government urges that a cell phone seized as an incident to an arrest can likewise be freely searched.”

Thus, the court ruled that a search “incident to the arrest” of someone does not violate that person’s Fourth Amendment rights. Yet the Fourth Amendment itself states that “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.”

How has this apparent contradiction been adjudicated? Two Supreme Court rulings regarding “search-incident” doctrine, based on the need for officers to quickly determine if containers associated with an arrestee contain evidence of the offense itself, or anything that might endanger the safety of police officers and others, have been somewhat contradictory. In United States v. Robinson (1973), a police officer stopped a car based on reliable information that Mr. Robinson’s driver’s license had been revoked. After being arrested on that charge, Robinson was searched and a crumpled cigarette package containing heroine was found. The Court ruled “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 4th Amendment, but is also a reasonable search under that Amendment.”

Yet in Arizona v. Gant (2009), Rodney J. Gant, was also arrested for driving with a suspended license, but was already walking away from his vehicle when police detained him. After securing Gant and other suspects in patrol cars, police searched his vehicle, where they found narcotics and a weapon. In that case, the Court ruled that police are not allowed to search an arrestee’s car after the arrestee had been handcuffed and there was no realistic possibility that he could gain access to any evidence or weapons in his vehicle.

Flores-Lopez contended that the latter case was applicable because, when narcotics officers searched his cellphone, it was safe in police custody, therefore requiring a warrant to conduct additional searches.

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  • TG Browning

    I’m curious about that Colorado case. How does one force somebody to reveal a password for encrypted files without physical force? Yelling and screaming, frothing at the mouth and “threatening” somebody ain’t gonna cut it. I’m pretty damn sure I couldn’t remember a password correctly while being threatened.

    And if you really DID have something to hide, I suspect I’d have something set up to kill files if the proper password was entered after a couple or three attempts.

    Very strange.


  • Brujo Blanco


    Good point. What if the defendant says he cannot remember the password? Being forced to provide a password is forcing a defendant to testify against himself. The defendant is being forced to identify a cell phone as his by providing the password. This ruling would also require defendants to participate in searching his own files against his own interests.

    The rules are being changed without regard to the constitution.

    • Eyes_Open

      This is nothing new to this administration. They consider the Constitution worthless old paper.

  • W. C. Taqiyya

    This is all very interesting. No, it isn't. Lets be honest with ourselves for a minute. This whole 4th amendment conflict thing and the court rulings and legal reasons and so forth and so on is all baloney. It's baloney because at least since the Patriot Act, the 4th amendment has been rendered moot. All they have to do is whisper, 'suspected terror activity', and hello dolly. By which I mean, forget about it. And nothing smacks of terror like a password protected cell phone. Gives me the willies just thinking about it. Excuse me, I think I see some suspected terror activity in my noisy neighbor's basement. Be just a moment, while I call it in.

  • Michael

    They charge the defendent with contempt of court if they don't reveal the password. Been a few cases, mostly dealing with hacker types who often know more about computers than the authorities. I don't think I ever heard of a case where the defendent resisted the pressure. I think you can be jailed indefinately on a contempt charge. Deleting data quickly doesn't work. It only removes the pointers, the actual data is still there. At minimum, you have to rewrite every sector on the disk which takes significant time.

  • Eyes_Open

    In Georgia, at least, the rule of thumb is that if the phone is own the person it is fare game, but if it is in the car, regardless of whether it is visible, it is off limits without a warrant. Looks like that is going to be the way it is every where. Personally I always take my cell out of my pocket when I'm driving anyway.