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-   -   Fourth Amendment and Cellphones? (http://www.firearmstalk.com/forums/f97/fourth-amendment-cellphones-54344/)

orangello 12-29-2011 04:39 PM

Fourth Amendment and Cellphones?
 
I saw a post this morning about a person who was arrested for doing something stupid and illegal. It was mentioned that the arresting agency confiscated the person's cellular telephone and used the data contained in it to expand prosecution to assosiates of the offender.

I find myself wondering, if the fourth amendment protects private telephone conversations from government eavesdropping (at least most of it) without proper warrants and such, are the text messages or other data on a cellular telephone protected by the fourth amendment?

For example: A traffic officer pulls over a driver who has been swerving about in their lane on suspicion of distracted driving. Can that officer demand access to the driver's cellphone to verify if the driver was texting while driving? If not, how could the state prove the violation? Could the driver present the cellular phone or texting records to prove they were not texting while driving?

If the officer can make such a demand without a warrant due to "probable cause" or something similar, what about the content of the text messages? Could the officer take action against a driver who was texting pornographic images or pedobear-esque suggestions to kindegarteners?

What about in other situations; when can a LEO demand access to your celluar telephone and its data? I mean the actual device, not records from the service provider.

Please, let's hold off on any LEO bashing in this one. If you had a bad experience, feel free to relate it but try to keep any ranting reasonable please. I would hate to waste the Modsquad's time on a primarily off-topic thread. (though they could ferret you out as a anti-government sniper by spotting your scope-doping app on your iphone. ;) )

Axxe55 12-29-2011 05:29 PM

i think that when they pass the nationwide ban on cellphones, there will be many problems in the enforcement of the ban. whether they have the legal right to confiscate someones phone as evidence will be left to the lawyers and judges. i think that they will have to get a court order and a warrant to obtain any records to be able to convict someone. will they go through such steps if it is only a misdemeanor conviction?

IMO, texting and using a cell phone while driving is stupid and reckless. just a few days ago, a lady moved into my lane and almost hit me and i looked over and she had her phone on the steering wheel texting! i blew the horn and she shot me the bird! what nerve. she was texting, almost hit me by swerving into my lane, but had the nerve to shoot me the bird for blowing my horn!

my advice, when a LEO, pulls someone over for driver distraction, texting or unsafe cell phone usage, right them a ticket, confiscate the phone and then run over it with the patrol car!

TNLawyer 12-29-2011 07:03 PM

In TN, we don't know the answer yet. The no texting law while driving law just went into effect and I'm yet to have a client or hear of someone charged with it. I'm not aware of any cases anywhere but there may be.

With regards to the 4th, they would need probable cause and my opinion would be that they would need more than just an observation of the driver swerving...like actually seeing them staring at their phone and typing. Our law is stupid because it is specific to texting...it doesn't address searching the Internet, or the other multiple ways you would be just as distracted when using.

I have a feeling this offense will largely be unenforced because of the difficulties in applying...unless they go so far as to outright ban cell phones while driving.

Axxe55 12-29-2011 07:52 PM

Quote:

Originally Posted by TNLawyer (Post 662231)
In TN, we don't know the answer yet. The no texting law while driving law just went into effect and I'm yet to have a client or hear of someone charged with it. I'm not aware of any cases anywhere but there may be.

With regards to the 4th, they would need probable cause and my opinion would be that they would need more than just an observation of the driver swerving...like actually seeing them staring at their phone and typing. Our law is stupid because it is specific to texting...it doesn't address searching the Internet, or the other multiple ways you would be just as distracted when using.

I have a feeling this offense will largely be unenforced because of the difficulties in applying...unless they go so far as to outright ban cell phones while driving.

the way i understand it, if the proposed law is put into effect, it would be a ban on any use of a cell while driving. whether calling, recieving or texting. what appears in debate right now is the use of hands free devices and those that are factory equipped in the vehicle.

Sonic82 12-29-2011 08:09 PM

This (I think) is standard practice. Police can already search your car without permission or a warrant is if they have probable cause. If an officer pulled you over for speeding and smelled pot ( as I understand it) he would have probable cause to search your vehicle. It doesn't have to be obvious. And, if the LEO feels there is something odd or suspect with your behavior or the vehicle, he can then legally search the vehicle. I suspect, they will treat cell phones in this manner, if they don't already.

orangello 12-29-2011 08:41 PM

Quote:

Originally Posted by axxe55 (Post 662272)
the way i understand it, if the proposed law is put into effect, it would be a ban on any use of a cell while driving. whether calling, recieving or texting. what appears in debate right now is the use of hands free devices and those that are factory equipped in the vehicle.

That would seem problematic without the officer having the ability to interact with the cellular phone, unless the "radar gun" people have developed a "cell gun" to detect cellular usage.

Axxe55 12-29-2011 08:47 PM

Quote:

Originally Posted by orangello (Post 662295)
That would seem problematic without the officer having the ability to interact with the cellular phone, unless the "radar gun" people have developed a "cell gun" to detect cellular usage.

i agree. most likely it will be an officer observing someone using a cell phone and pulling them over. as far as i'm concerned, they need to make the ticket a moving violation, then it goes on that persons driving record, in turn making their insurance higher. usually when it hits the wallet, maybe people will get the message.

Sonic82 12-29-2011 09:49 PM

edit...wrong thread

orangello 12-29-2011 09:51 PM

Quote:

Originally Posted by Sonic82 (Post 662332)
A friend of mine shot at a mouse in a cabin with a 12 Guage. He emptied the shot from the shell and cracked of fist of raw spaghetti in the shell. Fired and missed, but due to a quick mouse more than anything.

Was it a verizon mouse or an AT&T mouse?
;)

edit...gotcha! :D

Sonic82 12-29-2011 09:53 PM

Quote:

Originally Posted by orangello (Post 662334)
Was it a verizon mouse or an AT&T mouse?
;)

edit...gotcha! :D

I just wasn't quick enough.....but you were ;)


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