Supreme Court: Yes, America, of course cops need a warrant to search your smart phone during an arrest

posted at 12:41 pm on June 25, 2014 by Allahpundit

Police want to rifle through the virtual filing cabinet you carry around in your pocket without permission — and there was a dispute over whether they should be able to do that? How was this even a case?

Actually, it wasn’t much of a case: 8-1, with Alito concurring in part and concurring in the judgment overall. No dissents. Roberts’s opinion for the Court was bold colors, too:

r1r2

Follow the last link and skip to page 17 of the opinion to see him get going about the massive amount of information that smart phones can hold. The state’s thinking here, I guess, was that SCOTUS can be quirky when it comes to warrantless searches in the course of arrest, so why not run this up the flagpole and see how it flies? If cops can seize your DNA without a warrant during a stop by swabbing your cheek, why can’t they seize what’s in your Dropbox account too? That’s where the massive amounts of information come in: Between the enormous capacity of the phone’s hard drive, says Roberts, and the data stored remotely in the Cloud, a single arrest could give the state access to your entire life. The state’s best argument was that, in theory, a perp’s associates might be on the way to the scene to attack the police and the only way the cops might know that is to check his phone. How often does that really happen, though, asks Roberts? And even if it happens very rarely, how does that risk justify letting cops search 300 million people’s phones willy nilly during an arrest?

USA Today wonders if this presages another sweeping SCOTUS ruling down the road against NSA data-mining. Maybe not: Gabe Malor’s right that there’s a difference legally between the cops searching data stored on your own hard drive and searching data (or metadata) you’ve shared willingly with a telecom company. There’s a privacy interest in the former but not, under current precedent, in the latter. Then again, Roberts’s language today really is broad. If the Court’s worried about letting the state tap a bottomless reservoir of information about individuals, they may not care much where the tap is placed. You could, in theory, dispatch with current precedent in one flourish: Since, in our interconnected world, virtually all digital information is disclosed to some entity at some point, the act of disclosure to a telecom company can’t be understood as destroying the individual’s privacy interest in the information. The question is, will metadata be treated like information stored on a smart phone’s hard drive or as something qualitatively different, like the DNA sample that cops are already allowed to take during arrest? And if the latter, how come the NSA can collect it without an arrest being made?


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The 4th lives.

The 1st is dead.

PC will kill all.

Schadenfreude on June 25, 2014 at 12:53 PM

And if the latter, how come the NSA can collect it without an arrest being made?

Just so, and a judge ruled yesterday that the “no fly list” is unconstitutional.

Also, and obama-appointed judge ruled yesterday that the Southern border is unconstitutional.

The open border and the caliphate have much in common.

Schadenfreude on June 25, 2014 at 12:56 PM

The cops may need a warrant but if you’re in a VanGogh museum taking snaps of great masterpieces when they told you not to the guard can still grab and go delete-delete-delete…. I know.

Marcus on June 25, 2014 at 1:00 PM

There still seems to be some common sense in America. At least on this issue.

Scorched_Earth on June 25, 2014 at 1:01 PM

Great. Now get them out of our computers, too.

HopeHeFails on June 25, 2014 at 1:03 PM

Schadenfreude on June 25, 2014 at 12:53 PM

I suspect that despite this ruling, the current progressive-fascist agenda will continue their assault on the entire Bill of Rights – seeking to rewrite what they see as a hindrance to efforts to expand government power and control in a document that is obsolete and written for another time.

Athos on June 25, 2014 at 1:04 PM

How was this even a case?

Thank you!

locomotivebreath1901 on June 25, 2014 at 1:06 PM

The Supremes demonstrate a firm grasp of the obvious.

The smartphone is the portable equivalent of one’s telephone, mailbox, internet history and photo album all in one.

Which is why I choose not to place all of such data upon one such device.

In related news:

Ogabe’s NSA will be destroying their emails faster than Ogabe’s IRS.

viking01 on June 25, 2014 at 1:06 PM

I hope that the court rules as decisively in the two most important remaining cases, Hobby Lobby, and Noel Canning. In the first, the right of people to practice their religion anywhere outside of their home or church is at stake, and in the second, the future of the republic is at stake. I have greater hopes for that one because the justices surely realize that if they rule that Obama can unilaterally reinterpret the rules of the U.S. Senate, then he can can reinterpret the rules of the court, as well. On the other hand, in 2003, Sandra Day O’Connor was besieged with amicus telling her that if she upheld McCain Feingold the government would have the power to ban books, and she did anyway.

senor on June 25, 2014 at 1:06 PM

B.S. No one “willingly” shares data with a telecom company.

If the EULA’s had an option to click the ‘Hell no’ button and still receive service, no one would ever click the ‘Yes let the telecom spy on and receive all my data ever sent and received from this device.’

HopeHeFails on June 25, 2014 at 1:07 PM

USA Today wonders if this presages another sweeping SCOTUS ruling down the road against NSA data-mining . . . . .
.
. . . . . The question is, will metadata be treated like information stored on a smart phone’s hard drive or as something qualitatively different, like the DNA sample that cops are already allowed to take during arrest? And if the latter, how come the NSA can collect it without an arrest being made?

Allahpundit on June 25, 2014 at 12:41 PM

.
Schad’ sort-of beat me to it, but there’s the ultimate question behind this story … how does all of this affect the NSA ?
.
What about all of the (mega-tons of) data they already have ?

listens2glenn on June 25, 2014 at 1:08 PM

Will Linda Greehouse call the 8-1 decision “bitterly divided”?

slickwillie2001 on June 25, 2014 at 1:12 PM

I’m shocked this was even a case before the Supreme Court. Who was the officer that ever thought he didn’t need a warrant?

Ellis on June 25, 2014 at 1:13 PM

This never should have been an issue before the court at all.

The 4th and 5th Amendments are very clear.

ConstantineXI on June 25, 2014 at 1:14 PM

I’m shocked this was even a case before the Supreme Court. Who was the officer that ever thought he didn’t need a warrant?

Ellis on June 25, 2014 at 1:13 PM

Ever had to deal with a low level non professional “city special forces officer”?

Most of the ones I’ve encountered make Barack Obama look brilliant.

ConstantineXI on June 25, 2014 at 1:16 PM

I suspect that despite this ruling, the current progressive-fascist agenda will continue their assault on the entire Bill of Rights – seeking to rewrite what they see as a hindrance to efforts to expand government power and control in a document that is obsolete and written for another time.

Athos on June 25, 2014 at 1:04 PM

Expect the RINO/DIABLOs to aid in this, and the NSA too.

Schadenfreude on June 25, 2014 at 1:17 PM

I’m shocked this was even a case before the Supreme Court. Who was the officer that ever thought he didn’t need a warrant?

Ellis on June 25, 2014 at 1:13 PM

I believe the list would be an incredibly long one if you wanted names.

The 4th lives.

The 1st is dead.

PC will kill all.

Schadenfreude on June 25, 2014 at 12:53 PM

Agreed; makes me sad. :(

xNavigator on June 25, 2014 at 1:17 PM

If the tank-driving, recoilless-rifle firing SWAT team blows your arm off with phone in hand as they storm your house after a tip that you’ve been watering your lawn on off-days, are they allowed to search the phone?

Bishop on June 25, 2014 at 1:20 PM

I am saddened by the Court’s ruling on the Aereo case… now what am I going to use to watch TV? And they just finally got chromecast to work on the Aereo app on my phone… Bummer!

TexasTea on June 25, 2014 at 1:21 PM

enormous capacity of the phone’s hard drive

Just a note, phones dont have hard drives. They have memory chips.

MikeInBA on June 25, 2014 at 1:22 PM

I’m shocked this was even a case before the Supreme Court. Who was the officer that ever thought he didn’t need a warrant?
Ellis on June 25, 2014 at 1:13 PM

easy to miss the fact police have been doing this forover a decade. Many even bought gadgets to download eeverything on the phone on the spot as lower courts deemed it constitutional.

Wonder if this also stops customs agentd from randomly looking into phones and computers as you fly back into the country. That started at least 6 years ago when we were warned not to carry laptops with sensitive data. Instead, we’d keep those files on disks or removable media and either mail them or carry on our person.

AH_C on June 25, 2014 at 1:24 PM

If the tank-driving, recoilless-rifle firing SWAT team blows your arm off with phone in hand as they storm your house after a tip that you’ve been watering your lawn on off-days, are they allowed to search the phone?

Bishop on June 25, 2014 at 1:20 PM

Only if the severed arm isn’t still holding the phone…

viking01 on June 25, 2014 at 1:24 PM

If the tank-driving, recoilless-rifle firing SWAT team blows your arm off with phone in hand as they storm your house after a tip that you’ve been watering your lawn on off-days, are they allowed to search the phone?

Bishop on June 25, 2014 at 1:20 PM

As I have commented before, I think neighborhood watches should post sentries at night to monitor SWAT activity.

Deny these goons the element of surprise and force them to start acting like police officers IN A REPUBLIC: you serve a warrant by knocking on the door and then presenting it.

Not by blowing the door down at 3AM and tossing grenades inside.

ConstantineXI on June 25, 2014 at 1:25 PM

Just another thing for our so-called “law enforcement officers” to ignore or outright violate.

clippermiami on June 25, 2014 at 1:30 PM

Only if the severed arm isn’t still holding the phone…

viking01 on June 25, 2014 at 1:24 PM

If you just had your arm blown from your body by a 12 gauge sabot slug, technically it’s no longer in your possession, so I think the cops should be able to look through your pics and laugh while you bleed-out in your own living room.

Bishop on June 25, 2014 at 1:33 PM

I’m shocked this was even a case before the Supreme Court. Who was the officer that ever thought he didn’t need a warrant?
Ellis on June 25, 2014 at 1:13 PM

Did you fail to notice that the police in this country seem to be under the impression, that they are now the well funded Police/Military with all the powers of Police/Military of a 1960′s style Central American Dictatorship?

Wallythedog on June 25, 2014 at 1:35 PM

If you just had your arm blown from your body by a 12 gauge sabot slug, technically it’s no longer in your possession, so I think the cops should be able to look through your pics and laugh while you bleed-out in your own living room.

Bishop on June 25, 2014 at 1:33 PM

They aren’t cops anymore.

They are Special Forces Officer Squads in the Civilian Defense Corpse.

ConstantineXI on June 25, 2014 at 1:36 PM

I avoid this entirely by just not having a cell phone. You won’t believe how liberating it feels.

JeremiahJohnson on June 25, 2014 at 1:38 PM

I avoid this entirely by just not having a cell phone. You won’t believe how liberating it feels.

JeremiahJohnson on June 25, 2014 at 1:38 PM

Before long DHS will deem NOT having a smartphone to be suspicious activity.

ConstantineXI on June 25, 2014 at 1:41 PM

There is little difference, personal data-wise, between a smart phone and a laptop.

Sekhmet on June 25, 2014 at 1:42 PM

There is little difference, personal data-wise, between a smart phone and a laptop.

Sekhmet on June 25, 2014 at 1:42 PM

Today’s smartphones do things my PC couldn’t do 20 years ago.

ConstantineXI on June 25, 2014 at 1:46 PM

So what happens now to people who have already been convicted of crimes based on their illegal phone search?

HotAirian on June 25, 2014 at 1:46 PM

I wonder how this affects “Texting while Driving”. A Cop can only assume you were texting until he sees your phone. Will they now confiscate your phone until they get a warrant?

Whiterock on June 25, 2014 at 1:48 PM

How you’re hacked

Schadenfreude on June 25, 2014 at 1:48 PM

Hummm. After checking my Funk and Wagnall, affect s/b effect. Never could keep those straight.

Whiterock on June 25, 2014 at 1:53 PM

Today’s smartphones do things my PC couldn’t do 20 years ago.

ConstantineXI on June 25, 2014 at 1:46 PM

Indeed.

They can track you via your smartphone and with a few hacks here and bug your non-call conversations as well.

viking01 on June 25, 2014 at 2:03 PM

[In] Hobby Lobby… the right of people to practice their religion anywhere outside of their home or church is at stake
senor on June 25, 2014 at 1:06 PM

More like a gutting of the “free exercise” clause and allowing the decisions of cabinet members to sdetermine “compelling interest of the state” in needlessly abridging these rights.

And possibly the sheer sophistry on an unprecedented scale where not supplying something for the reasons under your religion becomes “religious suppression” of another person’s rights. As we complete the Fluke cycle in thoroughly confusing subsidy with rights.

Axeman on June 25, 2014 at 2:06 PM

Allah, I thought this was 9-0, not 8-1?

Mr. Bingley on June 25, 2014 at 2:07 PM

I wonder why no one has yet marketed a Faraday Cage slip case for iPhones?

ConstantineXI on June 25, 2014 at 2:11 PM

and the police just luuuuuv it when you tell them about your Constitutional rights…makes ‘em feel all Patriotic and warm and fuzzy inside.

Complain and I can pretty much guarantee that they’ll charge with you “attempting to incite a riot” or obstruction and take you in if they can’t find some other reason.

I avoid this entirely by just not having a cell phone. You won’t believe how liberating it feels.

JeremiahJohnson on June 25, 2014 at 1:38 PM

You’re a Thought Criminal. I bet you don’t even have a Facebook Page or a Twitter account. What are you hiding, Brother?

LOL

Dr. ZhivBlago on June 25, 2014 at 2:20 PM

I wonder why no one has yet marketed a Faraday Cage slip case for iPhones?

ConstantineXI on June 25, 2014 at 2:11 PM

I suggest using inexpensive aluminum foil.

freedomfirst on June 25, 2014 at 2:24 PM

If the NSA can use that data against you in any form, all be it terrorism, criminal charges, or civilly, then its an illegal search and siezure.

I’m NOT giving up essential liberty for purported temporary Bull$hiT safety provided to me by Chuck Schumer or Nancy Pelosi.

I will protect my damn SELF and I Dont need their help.

STOP MINING MY DATA – PERIOD -

TX-96 on June 25, 2014 at 4:34 PM

As someone with almost 25 years of law enforcement experience, I firmly agree with you. The Fourth Amendment starts out:

“The right of the people to be secure in their persons, houses, papers, and effects … ”

Any thinking person realizes that cell phones contain a large amount of info equivalent to “papers” and “effects”, and must be protected from unreasonable search and seizure.

HiredGun on June 25, 2014 at 4:48 PM

Happy days, the Chief Traitor to the Constitution, John ‘Benedict’ Roberts, gets one correct.

It’s interesting though that Roberts says it’s unconstitutional for the federal government to “rummage through homes” in America but somehow he’s fine with the federal government rummaging though our pockets and mandating that we purchase goods and services, ObamaCare, from a third party.

Democrats never make such mistakes with their SCOTUS picks. Another example of Democrats playing to win while the GOPe plays Go along & Get along.

RJL on June 25, 2014 at 8:40 PM

The already worn-out phrase ‘Well, He Has A Job To Do’ is going to get a little more use.

TimBuk3 on June 26, 2014 at 9:21 AM