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It's still a bit problematic. There are two kinds of searches that happen when a person is arrested. The first is called "search incident to arrest". It's purp

by Zak 16y ago

It's still a bit problematic. There are two kinds of searches that happen when a person is arrested. The first is called "search incident to arrest". It's purpose is to identify any weapons, escape tools or immediate means of destroying evidence on or around a suspect during arrest. Removing a phone from a suspect's immediate control is justified under each theory: the phone may actually be a disguised weapon, it may conceal escape tools and there may be evidence on it that the suspect could destroy. Accessing the data on the phone is not justified under any of these theories. The second is called an inventory search, which usually takes place when a suspect is booked in to jail, a car is impounded or similar. Its purpose is to identify anything dangerous (corrosive chemicals, explosives, etc...) and to protect the authorities from liability for the loss of any property while in custody. Generally, a suspect is presented with a list of property found and asked to sign a declaration that it is complete so that he cannot later claim property was lost or stolen. An inventory search probably does not require or allow accessing the data on a computer or storage device. The court ruled that it was a valid search incident to arrest, and that the police were entitled to inspect the contents of an item taken from the person of a suspect during a legal arrest. The justification for inspecting contents is, as I understand it similar to the above: to identify potentially dangerous items before storing the defendant's property, and to have an accurate inventory of what property the authorities are assuming responsibility for. Examining the data on a device almost certainly doesn't meet the first standard, and seems very questionable for the second.

tptacek 16y ago
From: http://supreme.justia.com/us/414/218/index.html http://supreme.justia.com/us/414/218/index.html (a) A search incident to a valid arrest is not limited to a frisk of the suspect's outer clothing and removal of such weapons [...] (b) A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment and, a search incident to the arrest requires no additional justification, such as the probability in a particular arrest situation that weapons •••or evidence••• would, in fact, be found upon the suspect's person [..., em mine] Also, since part of the overtly stated purpose of searches incident to arrest is to protect evidence from destruction, how much more compelling a case can you get than "stuff that is sitting on the guy's cellphone that anyone could erase with the touch of a button should they get their hands on it before the warrant arrived"? From the same opinion (quoted but also affirmed): "In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction." And later, directly: We do not think the long line of authorities of this Court dating back to Weeks, or what we can glean from the history of practice in this country and in England, requires such a case-by-case adjudication. A police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm •••and to discover evidence•••, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would, in fact, be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that, 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 Fourth Amendment, but is also a "reasonable" search under that Amendment. [em mine]
- Zak 16y ago
  If there's any meaningful risk of someone erasing content from a cell phone in a police evidence locker, no evidence stored in said locker can be considered reliable. As an example, the barrel of a firearm could be replaced between logging in to evidence and ballistic testing[0] or possible drugs could be swapped with real or fake drugs before lab testing. [0] This procedure takes only a few seconds on many handguns. Example: http://www.youtube.com/watch?v=gneUifU_0Bs http://www.youtube.com/watch?v=gneUifU_0Bs
  - anigbrowl 16y ago
    Physical objects can't be reconfigured via the net. My cellphone can; I could use Chrome2Phone to direct it to a page containing a script causing my phone to reformat its data card, for example.
    - tptacek 16y ago
      Wow. Good point. Please stop talking before you convince the courts to mandate auto-phone-search at traffic stops.
    - natep 16y ago
      Not if they put your phone in a faraday cage (could be a bag, box, or room) where it doesn't have any signal to the outside world, right?
      - anigbrowl 16y ago
        Cron job - deadman switch. I would assume a full forensic workover of your phone just like a computer, if arrested for anything: police will collect it and let the DA argue admissibility later, in court.

by Zak 16y ago

tptacek 16y ago

From: http://supreme.justia.com/us/414/218/index.html http://supreme.justia.com/us/414/218/index.html (a) A search incident to a valid arrest is not limited to a frisk of the suspect's outer clothing and removal of such weapons [...] (b) A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment and, a search incident to the arrest requires no additional justification, such as the probability in a particular arrest situation that weapons •••or evidence••• would, in fact, be found upon the suspect's person [..., em mine] Also, since part of the overtly stated purpose of searches incident to arrest is to protect evidence from destruction, how much more compelling a case can you get than "stuff that is sitting on the guy's cellphone that anyone could erase with the touch of a button should they get their hands on it before the warrant arrived"? From the same opinion (quoted but also affirmed): "In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction." And later, directly: We do not think the long line of authorities of this Court dating back to Weeks, or what we can glean from the history of practice in this country and in England, requires such a case-by-case adjudication. A police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm •••and to discover evidence•••, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would, in fact, be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that, 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 Fourth Amendment, but is also a "reasonable" search under that Amendment. [em mine]

Zak 16y ago
If there's any meaningful risk of someone erasing content from a cell phone in a police evidence locker, no evidence stored in said locker can be considered reliable. As an example, the barrel of a firearm could be replaced between logging in to evidence and ballistic testing[0] or possible drugs could be swapped with real or fake drugs before lab testing. [0] This procedure takes only a few seconds on many handguns. Example: http://www.youtube.com/watch?v=gneUifU_0Bs http://www.youtube.com/watch?v=gneUifU_0Bs
- anigbrowl 16y ago
  Physical objects can't be reconfigured via the net. My cellphone can; I could use Chrome2Phone to direct it to a page containing a script causing my phone to reformat its data card, for example.
  - tptacek 16y ago
    Wow. Good point. Please stop talking before you convince the courts to mandate auto-phone-search at traffic stops.
  - natep 16y ago
    Not if they put your phone in a faraday cage (could be a bag, box, or room) where it doesn't have any signal to the outside world, right?
    - anigbrowl 16y ago
      Cron job - deadman switch. I would assume a full forensic workover of your phone just like a computer, if arrested for anything: police will collect it and let the DA argue admissibility later, in court.