By on November 1, 2011

Motorists searched during a traffic stop may find their iPhone data electronically grabbed by police in ways that would not be possible or acceptable with written material. Some police departments, including the Michigan State Police, are equipped with a mobile forensics device able to extract images, videos, text messages and emails from smartphones. In some cases, the device is able to bypass password protection. Several states have been reluctant to curtail law enforcement access to this information.

In January the California Supreme Court ruled in California v. Diaz that a police officer did not need a warrant to read the text messages on a cell phone grabbed during a search incident to arrest. A Court of Appeal ruling in September (view opinion) found a Blackberry in an automobile was nothing more than a “container” subject to warrantless examination. Golden State lawmakers recoiled at the precedent being set and moved quickly to introduce legislation requiring police to obtain judicial approval before searching a phone. The state Senate approved the measure in June by a vote of 28-9 and the state Assembly unanimously passed it in August. Governor Jerry Brown (D), however, used his veto power last month to prevent the measure from becoming law.

“I am returning Senate Bill 914 without my signature,” Brown wrote in his message to the Senate. “The courts are better suited to resolve the complex and case-specific issues relating to constitutional search-and-seizures protections.”

Nationwide, the courts do not agree on how such cases should be handled. On Tuesday, New York’s Supreme Court, Appellate Division ruled that police had no right to read a driver’s paper notebook during a search. The case began when a Suffolk County Police officer pulled over Cristobal Perez for driving while talking on his cell phone and weaving in his lane. Perez had been operating on a suspended license, so his car was impounded. Police did not wait to ask a judge for a warrant before reading the papers found in the vehicle. The state’s second-highest court saw no reason why law enforcement could not wait for a judge.

“Here, the police officer’s initial entry of the defendant’s impounded car to leaf through notebooks located in the back seat was an unjustified unconstitutional search, and the notebooks and any information gleaned therein by the officer must be suppressed,” the unanimous court ruled. “Further, the plain view doctrine does not apply, because the incriminating character of the notebooks was not immediately apparent.”

Lawmakers in the Empire State have not addressed the issue of electronic searches. A copy of the New York decision is available in an 85k PDF file at the source link below.

Source: PDF File New York v. Perez (New York Supreme Court, Appellate Division, 10/25/2011)


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7 Comments on “Paper Treated Differently Than Smartphones in Automobile Searches...”

  • avatar

    Some phones are more secure than others, a locked door is a good idea, a locked compartment within the car is a good idea as well since it takes a judge to open it.

    • 0 avatar

      Ignoring the potential violation of rights – this is certainly points out the inherent insecurity in most cellphones. Other than Blackberries (which the driver in question apparently didn’t realize) I don’t know of any cellphone that comes with encryption out of the box.

      The trick is turning it on.

  • avatar

    I can’t see why it is so difficult to separate content from media. Your dirty secrets should have consistent and equal protection whether you have them on paper, in a cell phone or on an audio recording of bongo drums tapping out Morse Code.

  • avatar

    Constitutional search and seizure rules are really quite simple – they outline what the government can’t do, not what it can or is obligated to do. A law further restricting the right of police to search and seize property is in no way at odds with the US Constitution.

  • avatar

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…..

    At least they remember the definition of “papers”. If we could educate them on the meaning of “effects” we might have something.

  • avatar

    I wonder if a self-addressed, stamped envelope in the glove box would work in these cases? In Canada, it requires a federal warrant to open mail. If you placed your Blackberry, iPhone, radar detector, etc. in the envelope and sealed it, would that be sufficient in these cases?
    A clever cop made a friend of mine mail his radar detector, but he still got it back!

    • 0 avatar

      That is a brilliant idea. Also, it is out of prying eyes view and the only way to view the contents, to have any idea what is inside, would be to open the mail. Even if the officer suspected the envelope had your cell phone in it, he wouldn’t have the right to open it to find out. The effort in getting a warrant is probably a big enough hurdle to afford some protection. If the envelope was shaped like a glock it might be a different story.

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