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Judge: 4th Amendment Does Not Extend To Cellphones

March 8, 2012 by  

Judge: 4th Amendment Does Not Extend To Cellphones

Does the protection of the “right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures” provided by the 4th Amendment mean information contained on your cellphone is safe from government snoops? No.

Even though Americans keep vast amounts of personal — and perhaps, unwittingly, self-incriminating — information on their cellphones, and even though most modern cellphones are more like tiny computers than phones, the U.S. Court of Appeals for the 7th Circuit has ruled that it is legal for police to search them without a warrant.

Stemming from a case wherein Indiana police arrested a drug dealer and obtained information about his activities from his cellphone, the latest assault on the Bill of Rights is simply another liberty victim of the War on Drugs. Judge Richard Posner ruled that police would not have time to obtain a warrant for cellphone searches in many circumstances because suspects could wipe the devices clean in minutes. The judge likened cellphone searches to another case, United States vs. Robinson, in which it was ruled that a “container” on someone’s body at the time of arrest could be searched for evidence relevant to the crime for which he was arrested.

A portion of Posner’s opinion reads:

It’s not even clear that we need a rule of law specific to cell phones or other computers. 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. If allowed to leaf through a pocket address book, as they are, United States v. Rodriguez, 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. There is an analogy (implied in United States v. Mann, and cases discussed there) to the requirement that wiretaps “minimize the interception of communications not otherwise subject to interception.”

It is unclear whether removing the cellphone’s battery, completely turning off the device or protecting it with a password would be an effective way to avoid a warrantless cellphone search.

Sam Rolley

Staff writer Sam Rolley began a career in journalism working for a small town newspaper while seeking a B.A. in English. After learning about many of the biases present in most modern newsrooms, Rolley became determined to find a position in journalism that would allow him to combat the unsavory image that the news industry has gained. He is dedicated to seeking the truth and exposing the lies disseminated by the mainstream media at the behest of their corporate masters, special interest groups and information gatekeepers.

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  • Dwight Mann

    If you are arrested, then they would be able to search the contents of your cell phone. Then and only then, and that is IMHO

    • TML

      I agree… I think it should be treated the same as a consent, or lack of consent, for an officer to search your vehicle. Same principle. If you are arrested then they surely can search your belongings without your consent, or a warrant… but if you are not under arrest, and do not consent to search, they are not allowed to look through your phone.

      Two phrases to always keep in mind in this regard when dealing with an Officer…

      “I do not consent to any searches.”
      “Am I free to go?”

      • Robert


      • katrael59ganaiden

        TML, this is good advice. I wish that I had used it just a few days ago. I wasn’t guilty of anything but, the police thought that I was. They did a drug search in my residence without a warrant and even detained my father and myself without officially stating that we were under arrest. They were even bringing in crime lab people in an attempt to determine what some of the substances were that they found in the residence during their search. The crime lab people were turned around and never showed up and we were finally free to return to our activities, my dad went back to his house.
        My point? I didn’t know what to do the same as most citizens don’t the first time they face something like this….and this kind of thing will become more frequent.
        One of the police officers kept making the statement about being “good neighbors” while the other said repeatedly that the reason for their activity was due to “frequent law suits concerning meth labs”???? I guess those are good reasons to give up our fourth amendment rights?
        My brother, who once was a lawyer, said that any evidence found in such a search could be dismissed as evidence in court. So, why did they do this? It doesn’t matter why it’s that they did.
        It’s too bad for law enforcers if the suspect is able to “wipe” away the evidence. The law is not for their convenience it’s for our protection. I don’t have any sympathy for real criminals but, I do have for those of us who have to be subject to abuse by the authorities.

    • TML

      And here’s a novel idea… put a pass code on your phone to lock it when not in use. Even if arrested, you do not have to give it up… you have the right to remain silent ;)

      • Joe H

        you better make sure it’s a complex code. they have some pretty savy people working for them. Any type of code like that should be a minimum of eight figures of a combination of letters and numbers. A lot harder to break.

  • FreedomFighter

    Nobody and nothing is safe anymore,

    ‘Mancow’ Muller: Breitbart Was Murdered!!

    Laus Deo
    Semper Fi

  • enough

    I would break it into a million pieces and tell the police to shove it where the sun don’t shine.

    Once again the courts have failed to uphold the constitution.

  • Donnie

    Rights derive from property. A phone is private property and any unwarranted search is a breech of the 4th and 5th Amendments.

    Resist Unconstitutional laws.

    • mainerinexile

      i wholeheartedly agree!!! that is the essence of the constitutional right!

    • Nancy in Nebraska

      It gets even better. The Feds can remotely turn your phone into a listening device and eavesdrop on your conversations(and I dont mean phone coversations). Even if your phone is turned off. The only way to stop them is to remove the battery.

  • Kathryn

    They are changing our rights daily under Obama. The Supreme Court are liberal pussies, we have no rights they cannot change at a whim. People need to wake up and vote all this crap out of office. We need government officials that care about the will of the people not a bunch of overstuffed millionaires that are robbing us blind. We need to tell them what rules we want changed, Send my money to Asia for research- bullsh** . Supreme Court would no longer be a life appointment, government votes its own raises, yeah right. You want to buy vacations on my money, you can have one when I can afford to go. I don’t have the money and if I left my house your constituents would be breaking in and stealing everything you don’t. Vote all the bums out and start over with new rules. Won’t you feel so much safer when only military, cops, government employees and criminals have guns? Yes I am being facetious.

    • Puzzler

      You may have been facetious, (sp?), but in a big way you are not far from the truth. The first part about things changing under Obama is true, but you better look back a bit in history, because these things have been changing for a long time. I’m far from an Obama fan, (infact I have been a staunch conservative for a lot of years), but let’s not blame him for more than he is guilty of.

    • BigBadJohn

      UGH Katherine – the supreme court is made up of BUSH APPOINTED CONSERVATIVES.
      So much for the rest of your rant…..

      • Libertytrain

        Big bad john didn’t do his homework.
        2 appointed by Reagan,
        1 by George Bush
        2 by Clinton
        2 by George W. Bush
        2 by obama

      • Joe H

        Right you are, my friend!!! ON BOTH POINTS!!

      • BigBadJohn

        sorry you are right and I am wrong. Forgot about Obama’s two appointments, but only one can be considered liberal, the other is a centrist.

    • DAVE

      The SCOTUS are liberal [offensive word removed]? LMAO Liberal [offensive word removed] would surely pass Citizens United wouldn’t they? I’m not an Obama fan by the wildest reaches of the imagination, but if you on the right would have sounded off when Jr Bush was shredding the constitution, we might not be where we are today.

      • Joe H

        how many phone calls, emails and letters did you send when he tried to grant amnesty???? I know I sent at least 50!! People DID complain and WE STOPPED HIM ON IT!!!

      • GRusling

        Wake up Dave… Apparently you slept thru the GWB administration or you’d know there were a LOT of us screaming our heads off from start to finish!!!

  • FedUp

    Remember when it was made public that cell service providers were using the application Carrier IQ “to enhance the user experience”?

    Remember we learned they could control various functions of the ‘phone, including the camera and microphone?

    Remember how happy you were to have a pocket GPS built in to your ‘phone so you didn’t need two devices?

    And remember, your data is not just stored in the device, if it is stored there at all, but out “in the cloud”, a euphemism for a network of computers capable of storing every name, address, telephone number, text, portable document, photograph…ANYTHING you create, view, interact with, store, or come in contact with (including within Bluetooth reception distance).

    We have created the largest surveillance network in the world for the benefit of the government and with our consent.

    • flajim

      Not owning a cell phone (have no need), I have few personal concerns. If I had to get one in the future, is there a way to disable these ‘helpful’ features? I’m thinking mostly of the GPS feature since I’d use it only for making phone calls and storing phone numbers.

      Frankly, I think anyone who uses a cell phone for any other purpose is a little dotty and the Appeals Court decision was the correct one. I wouldn’t want to be walking around with a device in my pocket that’s transmitting personal information (including my whereabouts) to anyone, however.

      • GRusling

        Sorry… The GPS information is now necessary to switch from tower to tower as you travel, so turning it off would disable your phone.

        Like you, I use mine for phone calls and number storage ONLY, and don’t intend to use it for anything else. I’m over 70 years old and got by without any of it all my life, so I don’t need it now either…

      • FedUp

        Of the things I listed, not that I am aware of. While the camera is not essential, if you can turn it off they can turn it back on. The GPS, to the best of my knowledge, is not required to hop towers, but they can triangulate any cell ‘phone’s location from the towers.

        Just using the most basic telephone function is trackable, and if you store telephone numbers there is no guarantee they are not being stored in the cloud (a convenience feature, they say).

        As for CarrierIQ, for technically skilled people, maybe, but not for the average user.

        As to the Court’s decision, I can see why people might agree with it, although I don’t. They will argue there is no expectation of privacy, but few people realize what they are putting out there. I also have a problem with the notion we all need to be tracked; we are presumed guilty (of something) until proven innocent.

      • flajim

        @Fedup, I agree and you make some excellent points, however, the court’s decision only covered those already under arrest, not those just walking or driving down the street.

    • Joe H

      On the subject of cell phones. I got an advertisement in the mail today from a company called assurance wireless. Seems the “underprivledged” can obtain a cell phone for free with 250 free monthly minutes, and for 20.00 a month, they can get 1000 minutes voice and 1000 texts. This is carried by the Sprint system. now I have 4 phones through sprint, I share 500 voice minutes, unlimited text, and no internet. this costs us about 185.00 a month due to discounts. Now if we divide this by 4 we get 46.25 a month. I wonder how much we taxpayers are footing on the bills of those “freebies”???

      • FedUp

        I’ve found it hard to believe the public is just becoming aware of the “free ‘phone” thing.

        It’s paid for by one of the charges (TAXES) added to the end of our bills (I don’t remember which one; I try to forget).

      • Joe H

        Why do you try to forget? do you think if you ignore it, it will go away?? Call your provider and complain. Call your reps and complain. Write letters and complain!!! Let them ALL know how you feel!!!

  • Karolyn

    A while back a guy in NYC had videotaped police brutality on a subway car with his cell. The cops made him give up the phone, but he had the wherewithall to pull out the SD card, put it in his mouth and kiss his girlfriend to transfer it to her mouth. The video is on YouTube. I think that if I was in that position, I would resist giving up the phone and try to garner assistance from whoever was around me.

  • RF

    It’s interesting that this Judge did not make any inference to the search of a automobile.

  • DavidL

    At first impression I am concerned about this decision as many writing on this sight today. There are, and have been for some time, exceptions to the warrant rule. Police do not need a warrant to search your car. They do not need a warrant if you invite them into your home. They do not need a warrant pursuant to a stop and frisk. They do not need a warrant to search your garbage on the street because the expectation of privacy no longer attaches. They do not need a warrant when they believe an emergency situation exists and someone is in danger. They do not need a warrant when chasing a fugitive in hot pursuit.

    Without a case citation, any attempt to understated and comment on this article today is very limited. Can the case citation be given?

    • Pete0097

      The police need probable cause to search your car or your permission.

      • Nancy in Nebraska
      • GRusling

        Nancy: If you keep reading you’ll find that what the BP did was illegal. Within 50 miles of an international border, they have the authority to stop and check your identification, and they can walk a K-9 around your vehicle, but unless that animal “hits” on it, they cannot search the interior without permission.

        The use of handcuffs in such a situation is unusual, unless the stop is made by a single officer who considers the person a flight or safety risk. Neither appears to have been the case in this instance.

        When stopped by Border Patrol at anything other than a fixed checkpoint where all traffic is being stopped, you have the right to demand that Local Law Enforcement (Sheriff/State Trooper) be present before any search is conducted. Once such State officers arrive you may demand that THEY inquire as to what “Probable Cause” exists for your vehicle being searched, and you being detained…

      • DavidL

        No they don’t. It’s the plain sight and a flight risk rule. If they ask, for instance, to look into your trunk and you refuse, they can arrest you and do it anyway.

    • Alan

      @DavidL – this is very interesting. Yesterday we had a comment section, where the public was invited, to a State Senate conference meeting on the Castle Doctrine. Do you all remember the ruling in the 2nd circuit court by Justice Stephen David? Justice David ruled that we here do NOT have the right to defend ourselves against illegal police entry into our homes. The legislature is trying to codify our 4th and 5th amendment rights because this nincompoop, Justice David, thinks I don’t have the right to defend my private property against a tyrranical police State. For an hour and a half we sat there listening to the lawyers go back and forth about the rights of the police. One FOP lawyer got up and actually said, “I trade my private property rights to know that the police officer was safe.” You go right ahead and do that, sir, you have that right. Although, you do NOT have the right to trade my Liberty for your perceived security. Finally, the citizens got their day. We got up and armed with the Constitution, we reminded these elites that the Constitution is providing the Citizen with rights NOT to be violated. We, as Constitutionalists, made it known that NO ONE deserves “Special Rights” – NOT even the Police. Everyone deserves EQUAL Rights in the eyes of the law! To quote Ronals Wilson Reagan, “there ought to be a law against saying there ought to be a law!”

      • DaveH

        Once you realize that they are just the biggest Gang in the land, it all comes clear. They will get away with whatever the Propagandized citizens let them get away with.

      • GRusling

        Police (anywhere) will normally do whatever they can get away with. When you inform them you’re going to sue their pants off for violating your Constitutional Rights they usually back off.

        Put the following sign near the entrance to your home:

        “These premises are secured by Smith and Wesson (or Ruger/Glock/Sig/whatever) and your right to enter without permission will be decided after the inquest.”

        It makes visitors (including Police) a lot more courteous and patient…

  • Wisdom

    If the guy was arrested how could he erase anything from his phone which is in the possession of the police? If they are reading it they have to be in possession of it. Plenty of time to get a warrant. Just hold on to the phone. The judge’s logic does not make sense.

    • Vigilant

      That thought occurred to me as well when I read the article. If the suspect has no clue that the cops are obtaining a warrant, they may arrest him “by surprise” at any time and confiscate the phone immediately.

      Or are we talking about the ability to hack a wireless phone at any time without the person’s knowledge?

      In either case, the “reasonable person,” for whom the laws are written, would interpret the encroachment as a violation of the 4th Amendment, existing case law be damned.

      • Robert

        That’s wire tap, must have a warrant.

    • Vigilant

      If “the U.S. Court of Appeals for the 7th Circuit has ruled that it is legal for police to search them without a warrant,” does that law extend the random phone or does it apply only in cases of “reasonable suspicion?”.

      That was my question: has illegal wiretap become legal?

  • Clair Reading

    Article 4 of the constitution states “Probable” the state constitutions state “Probable” but the codes/statutes have morphed into “reasonable”. Welcome to the “reasonable” opinion of the police state and the new “old” Communitarian form of government.

  • phoenix

    ugh why not. they can already remotely scan your phone on a routine traffic stop…

  • Cute kitty

    Do they have an app yet that not only passcode protects the phone, but also will wipe the phone if someone enters it incorrectly a number of times or doesn’t pass a secondary security mechanism even if entered correctly? I know that forensics could probably get past a simple passcode if you were arrested and they wanted the info from your phone. That’s why I think it would have to be a more sophisticated app that would detect someone trying to hack into the phone & basically self-destruct. Maybe it could even record the attempts to hack, complete with video & upload it to a remote site before self-destructing. They want to use our technology against us… Well why not find ways to counter that for our benefit when they attempt it? Any developers out there want to take this on? I’d buy the app.

  • clipper316

    This should go to the Supreme Court! No search without a warrant. I am retired from law enfourcement and we do not need unreasonable search & seazure.

  • William

    I have questions. I am old enough to remember when all residential land lines were on party lines and maybe only some business were served with a dedicated line. The telephones and use of the telephone were owened by the phone companys. If your phone went bad it was taken to the phone company and it was replaced or fixed. then we were able to purchase our phones. also sometime everbody got a deticated phone service. When was the deticated phone service called privete ? And isn’t all radio transmissions controlled by the FTC as use of public air bands ? So then what is public and privete ?

    • DaveH

      I think you meant the FCC, William, for which there is no real need. They were created with the excuse that radio stations were encroaching on other radio stations territory, but those problems could have been treated the same way real estate is treated, by assigning a territory for the signals and adjucating in court if one station violates another station’s territory. And since the FCC’s creation, they have greatly expanded their mandate to effectively control the content of broadcasts which under our Freedom of Speech rights should have been none of the Federal Government’s business.

      Ron Paul 2012!

  • http://PersonalLiberty Tom Wiegand

    Screw there whole plan just don’t carry one or use one. They have only pushed this technology for it’s obviously weakness for interception of conversations, location of the user and worst of all negating the need and use of a phone directory and 411 system. Do you realize this is the same control technique used in the USSR. If everyone has phones but has no way to know the others contact number then they can keep the citizens splintered and unable to organize effectively. While at the same time they know each and everyone’s number and location at any time!

  • Puzzler

    “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. If allowed to leaf through a pocket address book, as they are, United States v. Rodriguez, 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.”

    The above is a quote from the article by Judge Posner. I would hope that the original arrest or search that produced the diary was a legal search done with a seaqrch warrent. If so, wouldn’t that mean that the arrest or search that produced the cell phone should have been done with a legal search warrent?

    It appears to me that this country is reverting back to the days when the local marshal or sheriff was the law. No matter what he did, he was the law so it was permitted. I would hate to see those days arise again. That is pretty much what it was like back in the 1800′s through about 1960. It got alittle better during the ’50′s & ’60′s, but not much.

    • Joe H

      I grew up during the fifties and sixties and I don’t remember it being like that. I remember a different type of cop. I remember cops that came to school and the kids cheered for them. I remember when kids would run TO the police instead of FROM. In my first twenty years of life I only remember one bad cop. He was a good guy that couldn’t control his drinking. A bunch of us kids took him home one night, called the police and told them he was real sick, and told them where his cruiser was. We kept him from being fired that time cause he WAS a good cop at one time and had even saved a few lives.

  • Lana

    Cellphones can be used as tracking devices by corrupt police and stalkers, this happened to me. the phone was old ,i even broke it in half trying to defend myself. i did not remove sim card and spookily got call from my own phone that shouls have been inoperable. I was victim of corruption in our police system, having done nothing wrong. Bad guys can wear uniforms,too. So if you are being stalked, remove sim card, better than nothing, although the newer phones are probably chipped in more sophisticated manner. There are many phony border stations, i am hesitant to even travel anymore. The ones who should be protecting us should have closer monitoring, and prove their idendity as well as us regular citizens.

  • BigBadJohn

    Old news – This is just an extension of what Clinton started. It is the same wiretap program that Bush used illegally to tap EVERYONE’S phone. Basically it is a computer program that scans all conversations and looks for certain phrases. Clinton went to the courts and they ruled that anything you put on the airwaves is free for the snooping. Bush took this one step further and without court approval, used the same program to listen to all wired phone conversations.

    Watch your accusations folks, this is NOT a democrat/republican thing BOTH parties are out to know your business and control your lives!

    • iredbranch

      The Bush wiretap plan was originally developed during the Clinton Adminstration, the same as the Patriot Act.

      Either Senator Dodd or Senator Biden wrote the Patriot Act in 1996 or 1997 and it was tabled indefinitely. It came out of hibernation after 9-11.

      This explains why it was strengthed twice under Obama who campaigned on getting it repealed.
      As you said, they both are in it together. Which is why to a certain extent that I believe that 9-11 put a crimp in some of their plans. Unlike, many who think 9–11 was used to expand their powers. They expanded their powers, but they were unable to make other changes.

    • Joe H

      Once again, i suggest you read a book entitled “puzzle palace”. It’s about the NSA. They have been doing what you speak of for over thirty years. Hell, it started during the VietNam era. At one time, the NSA was the only government agency that did not have a set budget. Read the book!!

  • iredbranch

    I was under the impression that the 4th Amendment protected people not gadgets. When did this change? After all, it will be the person and not the cell phone that is arrested.

    • Vicki

      iredbranch says:

      I was under the impression that the 4th Amendment protected people not gadgets. When did this change?

      Hopefully your impression changed when you read the 4th Amendment.

      “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. ”

      Last I checked a cell phone is a “thing” so absent a warrant to seize the cell phone it can not be searched.

      A cell phone would also be part of the class of things called “papers and effects” mentioned.

      • iredbranch

        I am very familiar with the 4th Amendment.

        The phrase “The 4th Amendment protects people not gadgets”. I do not recall the word used at the time, so I used gadgets. That sentence came from an old Supreme Court decision stating that the police would need a warrant before they could place a wire tap on a pay phone.

        “Persons, houses, papers and effects” were the only means available to record information at the time. Information that could be used to incriminate an individual or in a sense force that to testify against himself or herself, which would violate the 5th Amendment.

        Telegraph transmissions were protected by the 4th Amendment when they appeared as were telephone several years later. Each means of communication was also protected by the 4th Amendment as it became available. That is until the cell phone in the above case.

        Because the 4th Amendment protects the person, illegally obtained evidence is usually not allowed into evidence.

  • Marla

    you can have some pretty personal info on there. No way should our privacy be invaded like that. If there is any chance they invade the privacy of an innocent citizen than it can not be justified. This is America, we should be protected from actions like this

    • Joe H

      Therein is your mistake. If you are putting all that much personal info on it, you are putting it at risk. ONLY put on it what you wouldn’t mind others having!!! Erase your texts at least weekly.

      • DaveH

        We shouldn’t have to take precautions just to protect us from illegal searches.
        That’s kinda like telling somebody if they don’t want to be raped they shouldn’t go into bad neighborhoods, which also doesn’t wash.

      • Jon

        No David telling some one that is just common sense, so little of it to go around. The constitution does not promise 24/7 personal protection ether. It does guarantee your right to pursue happiness, not protection from stupidity……you know, not the out come, that is used today to grant all of these “entitlements”. Entitlements the trading card in exchange for freedom. Socialist “entitlements” is subservience.

      • Joe H

        don’t know if you will see this, but what i told her is just common sense. The cops and the government are not the only worry out there. there are crooks that will use every bit of info you give them. A lot of info can be derived from your texts.

      • flajim

        @Jon: I think you’ve nailed it there. Nowhere in the Constitution does it guarantee us a right to be stupid. Of course, if that’s someone’s idea of the pursuit their happiness, I guess we have to let them roam the streets wearing their pants at half mast while paying as much for their dumb phones as they spend to feed themselves.

  • FWO21

    Remember the 9th amendment of the Bill of Rights? It covers any freedom not mentioned in any other amendment. So, NO, they do not have the legal or ethical right to search someone’s cell phone. IMHO I do know about the 9th amendment though.

    • DavidL

      Well, unfortunately, the court doesn’t share your view.

      Can we get a case citation please? Otherwise we are just discussing someone’s creative essay.

  • DavidL

    Can we get a case citation so we can more intelligently think about and discuss this article? At this point, we are all walking around in the dark.

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  • Elvin Stofko

    Cellphones that are ergonomic and feature packed are really the trend these days. ”

    <a href="Our favorite web blog


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