Fourth Amendment and Cellphones?

Discussion in 'Legal and Activism' started by orangello, Dec 29, 2011.

  1. orangello

    orangello New Member

    19,156
    0
    0
    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. ;) )
     
    Last edited: Dec 29, 2011
  2. Axxe55

    Axxe55 The Apocalypse Is Coming.....

    7
    1
    0
    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!
     

  3. TNLawyer

    TNLawyer New Member

    5
    0
    0
    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.
     
  4. Axxe55

    Axxe55 The Apocalypse Is Coming.....

    7
    1
    0
    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.
     
  5. Sonic82

    Sonic82 New Member

    2,924
    0
    0
    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.
     
  6. orangello

    orangello New Member

    19,156
    0
    0
    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.
     
  7. Axxe55

    Axxe55 The Apocalypse Is Coming.....

    7
    1
    0
    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.
     
  8. Sonic82

    Sonic82 New Member

    2,924
    0
    0
    edit...wrong thread
     
  9. orangello

    orangello New Member

    19,156
    0
    0
    Was it a verizon mouse or an AT&T mouse?
    ;)

    edit...gotcha! :D
     
  10. Sonic82

    Sonic82 New Member

    2,924
    0
    0
    I just wasn't quick enough.....but you were ;)
     
  11. FightinTexasAggie

    FightinTexasAggie New Member

    48
    0
    0
    I know in Texas evidence from a phone cant be used without a warrant. A former co-worker had a friend who was arrested for DWI, and the officer looked at pictures on his phone. He found pictures of a marijuana growing set up in the guys house, so the police raided his house. All charges were dropped because the evidence was not legally obtained.
     
  12. robocop10mm

    robocop10mm Lifetime Supporting Member Lifetime Supporter

    11,380
    1
    0
    As is the case when dealing with the need for a warrant. The courts will look at the circumstances. If there was time to get a warrant then you should have gotten a warrant. Exigent circumstances sometimes will allow search w/o a warrant. If the phone is seized, then a warrant is probably needed as there is time to get one.

    PC for a search is not enough. One must have PC and exigent circumstances to justify searching with out a warrant.
     
  13. orangello

    orangello New Member

    19,156
    0
    0
    Thanks Robo; i was hoping you or Glass might chime in with an on-point answer.

    If it comes up in a traffic stop, i do not plan on voluntarily turning over my phone without a warrant. I won't lie about having one; i realize that isn't legal. I guess the best way would be to politely decline the request citing the warrant issue and then follow the officer's lead.

    I have to stop driving to text; my phone has a full querty keyboard that stretches my skills when sitting at my desk much less while driving. I also never really mastered reading while driving, so i just pull over at the next opportunity if i get a text.
     
  14. Sonic82

    Sonic82 New Member

    2,924
    0
    0
  15. Axxe55

    Axxe55 The Apocalypse Is Coming.....

    7
    1
    0
    i will add this, i worked for two different companies in the past that i was furnished with a company cell phone for work. company policy for both was you stopped and pulled over ifyou had to make or recieve a call. a violation for this could lead to termination. many a time was when i couldn't answer the phone and i let it go to voice mail. why can't people just learn to be a little safer and use some common sense when using a cell phone and driving.
     
  16. MidnightExpress

    MidnightExpress New Member

    251
    0
    0
    Basic common sense has been replace with an inflated sense of self-worth. Their phone calls and text messages are much more important than any accident they can and will cause.
     
  17. RichNH

    RichNH New Member Supporter

    62
    0
    0
    CA already explicitly allows it

    As you might expect, California recently passed a law which explicitly allows police to look at the contents of your cellphone if they stop you for any reason (e.g., a routine traffic stop). Of course, if you have security on your phone they can't force you to provide a password ;-).
     
  18. trip286

    trip286 New Member

    18,658
    1
    0
    Really? Just wait a bit, they'll get around to passing that law too
     
  19. robocop10mm

    robocop10mm Lifetime Supporting Member Lifetime Supporter

    11,380
    1
    0
    That law will be challenged and likely overturned. A State cannot enact a law that overrides the Constitution. That is called unconstitutional. Leave it to Kali, the State that is ALL about personal freedom passes a law like this! I guess personal freedom is not that important to them afterall.
     
  20. pagj17

    pagj17 New Member

    2,455
    0
    0
    I can't find any info on that law, though I can find info on a ruling by the California Supreme court last year allowing officers to search phones after an arrest...
    And trip... that's why you set your phone to delete everything if it's entered incorrectly after a few tries.:p