View Full Version : Cop checking my phone without a warrant?
axel4488
09-23-2011, 3:44 PM
I get pulled over alot due to not having any plates on my Jeep yet. Its registered and all and I dont mind the trouble since they are just doing their job.
What I did have a problem with was I was pulled over in Riverside and the cop of coursed asked for my license, reg, any weapons in the car and such...and then looked at my center console and said, "Let me see your phone". I obliged knowing he cant access it without knowing the pattern (android locking device). He then demanded that I unlock my phone. I asked why and he told me, "He saw me talking on the phone and wanted the evidence to prove it". Well for one, the Jeep is very loud and you can't hear a phone even ring in it, and two, isn't that illegal? Don't the police need a warrant to go through someones personal property without probable cause? I refused and he threatened me with being arrested for obstruction of justice, so I unlocked it. My last phone call was over an hour ago, and last sent text message was about 20 minutes ago. He let me go and told me to obey a cops order next time.
I am thinking he was somewhat new, younger guy and an ego bigger that Charlie Sheen himself but I was pissed. I was never insulting or showed anger to the cop, just resisted what I thought was an illegal search. Was I right in this or wrong?
Tripper
09-23-2011, 3:54 PM
sorry, but, we would have been discussing it after i got out of jail, had it been me.
did you have the little reg paper in the proper location.
once he sees that, he loses probable cause if i recall correctly, thus cannot go any further on the no plates thing. depends on if he's made contact yet or not.
the bad part about that is where its suppose to be, is not usually where the officer can actually see it before contact
not leo, not attorney, just opinion, and how I would go with it.
DVSmith
09-23-2011, 3:55 PM
At the moment it is legal:
http://btlj.org/2011/02/23/people-v-diaz-is-your-iphone-constitutionally-protected/
http://www.wired.com/threatlevel/2011/09/warrantless-mobile-phone-searches-now-illegal-in-california/
Cops in California would no longer be able to dig into your cellphone, iPad or laptop without a warrant if you are arrested, thanks to a new law that goes into effect if California Gov Jerry Brown signs a passed bill into law by October 9.
ETA: Sorry for the reply in the LEO section from a non LEO. I missed the forum title at first.
axel4488
09-23-2011, 3:58 PM
Thanks guys. Its not in the back window because the tint is to dark for it to be seen. So it is on the bottom passenger side of the windshield, which is said to be legal on the back of the temp reg tag.
I would have pushed it further but I do not have the money for a lawyer, nor the money to get my only car out of the impound. They rape you in fees.
@DVSmith. Thank you for the article. Good to know he was playing a loophole that closes soon :D
tonyxcom
09-23-2011, 4:55 PM
iPhones have the option to erase themselves after 10 failed tries. I am sure android has something similar. With the iCloud officially coming next month, you will always have a full backup from the day before.
The search is legal, but is it illegal to refuse to unlock the phone, considering doing so you might be self incriminating?
Tripper
09-23-2011, 5:29 PM
It started on a lie
Which negates the lawful order
It is no longer a lawful order to have been disobeyed
fullrearview
09-23-2011, 6:56 PM
A cell phone can be searched INCIDENT to arrest... That means, AFTER he was arrested. It cannot be searched to develop PC unless consent is given.
From the article, very 1st sentence...
This January in People v. Diaz (PDF), the Supreme Court of California affirmed the Court of Appeals decision that a warrantless search of the text message folder on an arrested person’s phone was valid as incident to a lawful custodial arrest.
ONLY if you are being taken to jail, and the search must be conducted in a reasonable time frame. Reasonable depends on the circumstances of the arrest.
OP: If what you are saying is true, you should contact Riverside and inform them of his actions... It's probably them reading the case law wrong, or a SGT. telling them its okay after reading it wrong. That being said, it's still WRONG.
This coming from an LEO.
NuGunner
09-23-2011, 7:01 PM
falls under same rule of probable cause
Sniper3142
09-23-2011, 7:03 PM
At the moment it is legal:
http://btlj.org/2011/02/23/people-v-diaz-is-your-iphone-constitutionally-protected/
http://www.wired.com/threatlevel/2011/09/warrantless-mobile-phone-searches-now-illegal-in-california/
ETA: Sorry for the reply in the LEO section from a non LEO. I missed the forum title at first.
As Fullrearview said... Those cases cover someone who has already been ARRESTED.
axel4488
09-23-2011, 7:41 PM
A cell phone can be searched INCIDENT to arrest... That means, AFTER he was arrested. It cannot be searched to develop PC unless consent is given.
From the article, very 1st sentence...
This January in People v. Diaz (PDF), the Supreme Court of California affirmed the Court of Appeals decision that a warrantless search of the text message folder on an arrested person’s phone was valid as incident to a lawful custodial arrest.
ONLY if you are being taken to jail, and the search must be conducted in a reasonable time frame. Reasonable depends on the circumstances of the arrest.
OP: If what you are saying is true, you should contact Riverside and inform them of his actions... It's probably them reading the case law wrong, or a SGT. telling them its okay after reading it wrong. That being said, it's still WRONG.
This coming from an LEO.
Yeah I will be called and complained. Would anything happen since I have no idea the officers name, or badge number?
fullrearview
09-24-2011, 8:07 AM
Yeah I will be called and complained. Would anything happen since I have no idea the officers name, or badge number?
That I don't know... I have never been the subject of a complaint... At least that I know of. I use recordings often, and I know people will want to file complaints claiming this or that. Admin will play the audio/video and most complaints go right out the window.
I would approach it as more of an educational thing... I think you would get a lot farther. My big thing is this... You came out unscathed... I'm worried about the next guy. That stuborn guy who knows his rights, but can't express them in a non-confrontational way. He resists, the cop thinks hes in the right based on what he was taught.... Well you get the picture.
Have I performed an illegal search or act??? Yes I have. I was unaware it was an illegal search at the time, but I still did it. I fell on my sword and learned from it. Hopefully, he and others can learn from this too.
Like many people on here say... pick and choose your battles. "Fighting" this outside of jail is a lot easier than "fighting" it from the inside.
Pelicandriver
09-24-2011, 8:07 AM
Hopefully a briefing item will be issued explaining explaining probable cause for a search AGAIN and an explanation that the phone can only be searched subsequent to custodial arrest.
Unit74
09-24-2011, 11:28 AM
As a cop I have a hard time swallowing this. My conscience tells me that if I have to manipulate something to obtain evidence that is not in plain view, then I have a legal issue. Even if it was a cell phone violation, I feel I would still need a warrant.
Additionally, what justification would I have for a warrant-less search on the phone search incident to apprehension? My gut tells me if the phone was used in anyway that it can be seized and a warrant obtained. Cracking it open without PC, to me, is not going to fly in court.
CSACANNONEER
09-24-2011, 11:48 AM
A wise attorney (Jason Davis) once told me "It is not my job to make a LEO's job easier for him. It is my job to protect my best interests." I would have not unlocked my phone period. I would have ended up either being bailed out or insisting that his supervisor come out immediately. Then, I would have asked the field supervisor about the youngin's training and to let him know that it is not illegal for me to refuse to comply with the unlawful search he was preforming and that I either wanted an immediate verbal and written apology for this clear violation of my rights or, I would be proceding with legal action that was just going to cost his department money that could be better spent on proper training and glasses for the officer in question. Since, of course, he was wrong and my phone has not even been used in an hour. But, I'm saving that "evidence" for my case against the department.
CSACANNONEER
09-24-2011, 11:51 AM
As a cop I have a hard time swallowing this. My conscience tells me that if I have to manipulate something to obtain evidence that is not in plain view, then I have a legal issue. Even if it was a cell phone violation, I feel I would still need a warrant.
Additionally, what justification would I have for a warrant-less search on the phone search incident to apprehension? My gut tells me if the phone was used in anyway that it can be seized and a warrant obtained. Cracking it open without PC, to me, is not going to fly in court.
There are good officers who can and will use logic and then, there are a few bad officers who's logic is questionable at best. If this story is correct, the officer may have just been on a fishing trip thinking that if he found any evidence of the phone being used, he could just write a citation and the victim of his illegal search wouldn't fight it in court.
grant22
09-24-2011, 11:53 AM
If I were to be pulled over and a cop acted in a manner I didn't agree with (like the OP), can't I request his supervisor come out?
If so, and the officer is in the wrong, I would think this could diffuse the issue.
trendar5
09-24-2011, 3:05 PM
A cell phone can be searched INCIDENT to arrest... That means, AFTER he was arrested. It cannot be searched to develop PC unless consent is given.
From the article, very 1st sentence...
This January in People v. Diaz (PDF), the Supreme Court of California affirmed the Court of Appeals decision that a warrantless search of the text message folder on an arrested person’s phone was valid as incident to a lawful custodial arrest.
ONLY if you are being taken to jail, and the search must be conducted in a reasonable time frame. Reasonable depends on the circumstances of the arrest.
OP: If what you are saying is true, you should contact Riverside and inform them of his actions... It's probably them reading the case law wrong, or a SGT. telling them its okay after reading it wrong. That being said, it's still WRONG.
This coming from an LEO.
This is the exact training that we received from the Santa Clara County D.A.
Further, it is likely that new case law will develop from suppression of evidence, whereby the search of the cell phone must have some nexus to the crime the person is in custody for. For example, if you arrest somebody for stabbing somebody, you might want to look for pics of the guy holding his knife, or gang related indicia ect. in photos or videos. But, if you arrest somebody for driving on a suspended license, what would you be looking for in the phone that is related to the arrest? Maybe a text message to a friend, "I know I'm suspended etc."
axel4488
09-24-2011, 3:51 PM
I am sure the cop was just thinking he was doing his job correctly and I mean no insult to him at all. He just needs some education thats all.
To the people who said I should have refused, remember it is LEGAL for them to check phones until October 9th. So the cop was technically in his right to demand me to unlock it. After a few pm's from a helpful friend I have come to the conclusion that this was actually a Rivco Sherrif's Deputy (tan shirt n all). Its all good. If anything. EDUCATION is what I and hopefully he will recieve.
fullrearview
09-24-2011, 5:42 PM
I am sure the cop was just thinking he was doing his job correctly and I mean no insult to him at all. He just needs some education thats all.
To the people who said I should have refused, remember it is LEGAL for them to check phones until October 9th. So the cop was technically in his right to demand me to unlock it. After a few pm's from a helpful friend I have come to the conclusion that this was actually a Rivco Sherrif's Deputy (tan shirt n all). Its all good. If anything. EDUCATION is what I and hopefully he will recieve.
Again... It is ONLY legal under a few conditions...
A: Warrant
B: Consent
C: Probable Cause
D: Search incident to arrest
E: Exigent circumstances
I can not search your cell phone to find PC to arrest you unless one of these applies.
E would be a hard one to articulate...
Again... WE CAN NOT CHECK YOUR CELL PHONE WHENEVER WE WANT!!!!!
axel4488
09-24-2011, 5:52 PM
cant you twist probable cause to search my phone for proof though?
automatikdonn
10-01-2011, 10:11 AM
This should fall under the same laws as a locked physical device such as a safe, and as far as I know they do have PC to look at the phone, but unlocking it is their problem. If you have a combination locked safe in your car, do you HAVE to open it without a warrant?
I'm not LEO, and this is just my 2cents, however I do read the law and have logical reasoning to believe this is the case. There is some precedent for this case, but not in case law(ie Court Ruling).
TSA tried to get a man who was a known child pornography trafficker to give them the password to his computer to get on a plane, and without a warrant they were unable to take the device to crack it themselves. Unlocking something is the LEO's problem not yours.
I'm also not a lawyer. I would follow up with the LE agency.
Run it Back
10-01-2011, 11:05 AM
Just something to think about:
I get pulled over alot due to not having any plates on my Jeep yet. Its registered and all and I dont mind the trouble since they are just doing their job.
What I did have a problem with was I was pulled over in Riverside and the cop of coursed asked for my license, reg, any weapons in the car and such...and then looked at my center console and said, "Let me see your phone". I obliged knowing he cant access it without knowing the pattern (android locking device). He then demanded that I unlock my phone. I asked why and he told me, "He saw me talking on the phone and wanted the evidence to prove it".
The OP stated he gets pulled over a lot due to not having plates. He did not state he got pulled over on this date for no plates...TRIPPER...The officer stated he saw the OP on his phone...there is your PC...TRIPPER...a perfectly legal PC to continue an investigation, NOT A LIE.
The phone can be legally seized for evidence, searched, and the OP may never get his phone back. Or if he was not on his phone, why go through the hoops and hassles? To be a martyr?
Ron-Solo
10-01-2011, 11:45 AM
Just something to think about:
The OP stated he gets pulled over a lot due to not having plates. He did not state he got pulled over on this date for no plates...TRIPPER...The officer stated he saw the OP on his phone...there is your PC...TRIPPER...a perfectly legal PC to continue an investigation, NOT A LIE.
The phone can be legally seized for evidence, searched, and the OP may never get his phone back. Or if he was not on his phone, why go through the hoops and hassles? To be a martyr?
Sorry, talking on a cell phone is only an infraction and you can't seize a phone to get evidence against someone to prove your case. That is pure BS. If a LE stops you for a phone violation, the only reason for checking the phone for a 911 call, which is allowed under the law. That is in your advantage, but only in that case. Anytime I had a phone violation contact, I gave the person the opportunity to show me they were calling 911, but I only had one person be able to prove they were calling 911.
RickD427
10-01-2011, 1:18 PM
As a cop I have a hard time swallowing this. My conscience tells me that if I have to manipulate something to obtain evidence that is not in plain view, then I have a legal issue. Even if it was a cell phone violation, I feel I would still need a warrant.
Additionally, what justification would I have for a warrant-less search on the phone search incident to apprehension? My gut tells me if the phone was used in anyway that it can be seized and a warrant obtained. Cracking it open without PC, to me, is not going to fly in court.
There are many avenues that would permit a lawful search of the phone. As an LEO, I need some form of legal standing to perform any non-consensual search. A warrant is probably the best (but far from the only) form of standing.
Where cell phones are concerned the required legal standing can often be found:
In a search incident to a custodial arrest - This is where the People v Diaz case comes into play. In that case the California State Supreme Court upheld the search of Diaz's cell phone after he was arrested for selling drugs. The cell phone yielded evidence that he was selling drugs. The Diaz case was a clear and simple application of U.S. v Robinson to a cell phone. The idea is that a cell phone is a "container" of information and can be searched as a container.
Vehicle Search - With very few exceptions, a vehicle can be searched, without need of a warrant, based on probable cause. That search authority also extends to "containers and packages" within the vehicle (U.S. v Ross). If I have probable cause to believe that a driver is drug dealing, then I would have standing to search the driver's cell phone (I could expect to find evidence on the phone - back to the Diaz case). No warrant and no consent would be needed (even if the vehicle is locked). On the other hand, if I suspected the driver of having committed an assault, and I was looking for a weapon, I could not search the cell phone (you can't hide a weapon in a cell phone).
The Diaz case caught some attention in the legislature. Not everyone believes that cell phones, laptops, etc. are simply "containers" of information. Many believe that they deserve a higher level of protection because of the amount of personal information they contain. That led to the passage of Senate Bill 914 which would require a warrant under the conditions of the Diaz case. It's not law yet, the governor has not signed the bill. The bill did have wide support as it went through the Assembly and Senate. It's hard to see where the governor would decline to sign, but stranger things have happened (especially with this governor).
Tripper
10-02-2011, 11:14 AM
TRIPPER...The officer stated he saw the OP on his phone...there is your PC...TRIPPER...a perfectly legal PC to continue an investigation, NOT A LIE.
the OP also stated he was absolutely NOT on the phone
saying that his last call was over an hour, and last text was more than 20 minutes.
indicating to me, that the officer made a false statement by saying
"he saw me talking on the phone"
if you dont call that lying, what do you call it?
Tripper
10-02-2011, 11:22 AM
my problem mostly with that idea, is.
had the officer found xyz
the idea that it would likely have been thrown out, because here's about how that would go
officer: i looked in the phone because i saw the Subject, on the phone, while there i found xyz
subject: when did you see me on the phone
officer: before i pulled you over
subject: but, as you can see, on the phone, the last call was over an hour prior to your pulling me over, how do you explain seeing me on the phone
officer: ??
so, tell me, how would the officer answer that question, it would absolutely suggest the officer was mistaken (or lying, depends on how you look at it) it then would establish 'shadow of doubt', as the officer is mistaken here, what other mistakes might the officer make?
now, had that been something serious on the phone, some serious lead to something bigger, you just lost it all, due to the unlawful search.
that is what i dont like about establishing PC in that fashion, as it gets things thrown out on the technicalities.
Tripper
10-02-2011, 11:28 AM
it may not be apparent
but
I HATE things getting thrown out due to some ridiculous technicality.
and i hate also to see officers deliberately create that technicality
why help their defense,
the best good cause creates itself.
jeep7081
10-04-2011, 10:34 PM
Recently (few months ago) I got pulled over for cell phone violation. He walked up, said he saw me on the phone. I laughed and said I was on speaker phone, not to my ear. He said phone must not be in my hand. I said ok, wasn't aware. I said, you got me then and laughed. Handed him my CDL. He looked, handed it back, smiled, and said have a good one. I said thanks, you too. All how you go about it ;)
cruising7388
10-05-2011, 5:34 PM
Recently (few months ago) I got pulled over for cell phone violation. He walked up, said he saw me on the phone. I laughed and said I was on speaker phone, not to my ear. He said phone must not be in my hand. I said ok, wasn't aware. I said, you got me then and laughed. Handed him my CDL. He looked, handed it back, smiled, and said have a good one. I said thanks, you too. All how you go about it ;)
Unless I misunderstand the regulation involved, the phone can not be in your hand while you are talking on the phone but you are permitted the use of your hand(s) to initiate and terminate a voice call. Is this the case?
Midian
10-05-2011, 5:38 PM
"Cool your jets, Kojak, and get your boss out here so we can all talk."
TRICKSTER
10-05-2011, 5:48 PM
Court decisions are constantly changing the laws, and the legislature keeps adding new ones. Even if you were trained in every law and court decision in the academy, your training would be obsolete within a year. Add to that the fact that many laws and court decisions are unclear and open to interpretation.
Heck, even the lawyers and judges can't agree on some of them and look how much school and training they receive.
RickD427
10-05-2011, 6:42 PM
A cell phone can be searched INCIDENT to arrest... That means, AFTER he was arrested. It cannot be searched to develop PC unless consent is given.
A search incident to an arrest only has to be made incident to that arrest. There is no requirement that the search occur after the arrest. Please check out People v Limon (17 Cal. App. 4th 524) for a good example of where the court upheld a search occurring before the defendant's arrest as being "incident" to that arrest. The same concept that an "Incident" search can precede the arrest was upheld by the U.S. Supreme Court in Rawlings v. Kentucky (448 U.S. 98)
You discussion about the need to have standing to make a search is very well taken and I very much agree with your professionalism on the point. At the same time, the state of search and seizure law is quite complicated and LEO's should not summarize the law as being more restrictive than it is.
Trickster, in the post immediately above is very much on point.
warkaj
10-06-2011, 1:24 PM
I believe I heard something about this on the AM radio the other day. I guess they CAN search your phone as decided by a court ruling on a 2007 arrest of some Diaz guy.
http://lawblog.legalmatch.com/2011/01/17/court-rules-police-can-search-cell-phones-without-a-warrant/
Basically... damn the Constitution and your "rights". This is disgusting, any good attorney would destroy any case that was built on evidence brought forward by an illegal search. I see this going to the SCOTUS, it's not over.
walletclan
10-06-2011, 1:57 PM
This just in: http://www.californiality.com/2011/09/california-mobile-device-privacy-law.html
Us3rName
10-06-2011, 3:31 PM
If I were to be pulled over and a cop acted in a manner I didn't agree with (like the OP), can't I request his supervisor come out?
If so, and the officer is in the wrong, I would think this could diffuse the issue.
I think it really depends on the situation. But most of the time that I've requested a supervisor, He was there within 20 minutes.
Samuelx
10-09-2011, 10:38 PM
According to briefing, governer vetoed the bill - i.e. warrantless searches of cellphones incident to arrest are still good.
Btw, unless you happen to be a scumbag with something incriminating on your phone, you really have nothing to worry about... I.e. if you're a decent person, there won't be anything bad on your phone anyway...
axel4488
10-09-2011, 11:02 PM
According to briefing, governer vetoed the bill - i.e. warrantless searches of cellphones incident to arrest are still good.
Btw, unless you happen to be a scumbag with something incriminating on your phone, you really have nothing to worry about... I.e. if you're a decent person, there won't be anything bad on your phone anyway...
I don't care. If it is true that its still legal for them too for no reason, I will either lose my phone's password or smash the screen before anyone violates my rights again.
Samuelx
10-09-2011, 11:41 PM
I don't care. If it is true that its still legal for them too for no reason, I will either lose my phone's password or smash the screen before anyone violates my rights again.
1. it's done incident to arrest - not for "no reason"
2. per case law, it's not a violation of your rights
axel4488
10-10-2011, 12:08 PM
Now as in he wants to search my phone to prove I was talking on it, you know what this thread is about. They will do it again I bet. Now that I have plates on the Jeep its just a matter of time.
fullrearview
10-10-2011, 1:59 PM
If you're not getting complaints, you're not doing real police work. ;D
I know the old joke, but there WAS some truth to it... Why get complaints when I can spend an extra two to five minutes and have people asking me to take them to jail?
Most adults that I contact for an LEO function are not much smarter than a child... If they were, they would have acted like adults and solved their problems as such. Children are easily persuaded.
mototireguy
10-10-2011, 8:00 PM
I agree with the idea that searching or tapping our communication devices or paper/electronic data stores should require LEO's first get a magistrate to issue search warrant.
http://en.wikipedia.org/wiki/Search_warrant
Don't think LEO's can compel you give up passwords to your computer or phone. They would have to arrest you and get a court ordered gadget cracker if needed.
Trying to add some perspective here...
In the past what used to be our personal computers, documents and personal secrets, were safely located in our homes and were protected from unreasonable search/seizure by requiring a search warrant to come into the home.
Today our personal computers and personal secrets can now be carried on our persons via our mobile phones. Normal arrest procedures call for the impound and cataloging of all items on your person. If you're arrested while driving it's safe to say your car can get impounded and cataloged too.
What impounded items should the police be allowed to scrutinize without a search warrant? Of course the first stop is a reasonable search without warrant of your wallet for your ID/name/address/etc. After that, well that's where the what's reasonable without warrant search nitty gritty debate begins.
In the future maybe our overlords will have that high tech smart phone password/encryption cracker device with an induction probe for human skulls. Just pray this future device will require a search warrant before use
RickD427
10-11-2011, 3:20 AM
There are many avenues that would permit a lawful search of the phone. As an LEO, I need some form of legal standing to perform any non-consensual search. A warrant is probably the best (but far from the only) form of standing.
Where cell phones are concerned the required legal standing can often be found:
In a search incident to a custodial arrest - This is where the People v Diaz case comes into play. In that case the California State Supreme Court upheld the search of Diaz's cell phone after he was arrested for selling drugs. The cell phone yielded evidence that he was selling drugs. The Diaz case was a clear and simple application of U.S. v Robinson to a cell phone. The idea is that a cell phone is a "container" of information and can be searched as a container.
Vehicle Search - With very few exceptions, a vehicle can be searched, without need of a warrant, based on probable cause. That search authority also extends to "containers and packages" within the vehicle (U.S. v Ross). If I have probable cause to believe that a driver is drug dealing, then I would have standing to search the driver's cell phone (I could expect to find evidence on the phone - back to the Diaz case). No warrant and no consent would be needed (even if the vehicle is locked). On the other hand, if I suspected the driver of having committed an assault, and I was looking for a weapon, I could not search the cell phone (you can't hide a weapon in a cell phone).
The Diaz case caught some attention in the legislature. Not everyone believes that cell phones, laptops, etc. are simply "containers" of information. Many believe that they deserve a higher level of protection because of the amount of personal information they contain. That led to the passage of Senate Bill 914 which would require a warrant under the conditions of the Diaz case. It's not law yet, the governor has not signed the bill. The bill did have wide support as it went through the Assembly and Senate. It's hard to see where the governor would decline to sign, but stranger things have happened (especially with this governor).
All,
Stranger things just happened. The governor just vetoed the bill..................
thrasherfox
10-11-2011, 3:52 AM
I dont know if this has been covered yet.
But apparently the law says the phone can be searched.
Does the law in anyway require a person to assist in the search of their own phone?
Dont we have the right to take the 5th, which is protection against self incrimination?
If so I would think unlocking a cell phone just because an officer told you to violates a persons right to protection from self incrimination.
10-8Gunslinger
10-11-2011, 6:12 AM
I am thinking he was somewhat new, younger guy and an ego bigger that Charlie Sheen himself but I was pissed. I was never insulting or showed anger to the cop,
Honestly you say you weren't insulting or angered but you go to say he is "new" and has an ego? Sounds like he knew the law and what he was doing so how's he new and have any ego? He let you go, I'm pretty sure I would've done the same. Play games is for kids not adults.
thrasherfox
10-11-2011, 6:56 AM
To me searching a persons cell phone should be illegal. I feel this is crossing a line.
As for me, I have a cloud account that contains personal data that an officer has no right to access. such as my kids SSN's, their birthdates etc.
I also have photobucket tied into my phone, along with my email. if an officer is searching my phone he is also accessing my personal email, my online photos which is not searching my phone, it is searching a privatley owened web server that would typically require a search warrant to gain access to.
What if I had naked pictures of my wife on my phone? that is not illegal whatsover, but I sure in the heck dont want some guy looking at my private pictures. and it is my phone, I paid for it and pay for it. it is not public property for someone to browse through.
That is specifically why my phone is locked and I have remote wipe software on it, so if it is ever lost or stolen all I have to do is get to the internet and I can wipe my phone of all its data.
I should not have to worry about it being searched over a random traffic stop so some officer can browse all my pictures and personal information.
I have nothing illegal to hide, however I do have a personal life that should not be subjected to intrusion at random by someone who has been placed in an authoritative position over me unless I have broken a law that specifically warrants a search warrant for a specific issue.
So in the end I say bring it. I will not give out my unlock code and if my phone is ever searched or downloaded I will file a lawsuit and suck every bit of money from the department that does it that they have.
I will bring facebook into the lawsuit since they would have illegally access my facebook acount, also photobucket, tagged, google.
Any system that my phone is tied to I will bring them into the law suit, because as I said they would have access to those company's systems without a proper search warrant in the guise of a cell phone search.
So yeah, bring it.
thrasherfox
10-11-2011, 7:06 AM
Yeah, there is a decent sized group here who hates us and are very vocal about it....
I dont feel there is a decent sized group that hates LEO's
I just think it seems that way because the ones that do are very vocal about it.
also, sometimes these discussion can get heated and you might have someone who "seems" to hate LEO's and doesnt.
I for one probably at times might apear to not like LEO's. It isnt LEO's in general however, it is just certain ones that I think reflect badly on departments and if other LEO's were honest about it they would probably agree.
My son inlaw is a LEO, a good amount of my friends are LEO's and I have a few friends who are judges. I have nothing but the utmost respect for "most" LEO's
But as I said in my previous post, there is not any organization that does not have a few bad apples, it is unavoidable.
The problem with bad apples is it is almost a no win situation for the people that work with them. especially when you are dealing with military or LEO's and the like.
thrasherfox
10-11-2011, 9:59 AM
I thought I would add.
While I am not a lawyer. I based my above theory on the fact I have worked in information technology for over 30 years, some of my certifications required learning about the laws in regards to accessing data on information systems. There are pretty strict guidelines and laws regarding accessing information by law enforcement.
For an example, as an IT person, if I see something on a system or network that I feel is illegal, I can offer that information to law enforcement and they can act upon it.
however if at anytime they tell me or ask me to obtain certain information, they have in a way deputized me and I am now an agent for that agency, any information I gain after that point becomes inadmissible unless there was a court ordered search warrant.
All of the computer systems on a company network need to display a warning banner stating anything you put on the information system is subject to monitoring, without it you are unable to hold the person accountable.
I have specifically worked in information security in regards to these issues for over 14 years and I would bet all it is going to take is one citizen who knows what I know to have his rights violated, and for that person to get a very competent lawyer, and I see this law being ripped to shreds.
Cell phones these days are considered portable computing devices, not just cell phones.
I really hate to say it but I think this law is very weak and should NEVER have been put into law.
Heck, I know of police departments that do not utilize trained computer forensics, they ask people how to do things then try and do their own forensics on a computer system.
They have no chain of custody in regards to what is required when dealing with computer systems and information systems and the things that I have been made aware of that some departments do indicate that the hard drive they are doing forensics on is not only tainted immediately but I could prove it. And once you can prove the drive has been modified in anyway that drive and its data becomes inadmissible in court. The drive is worthless.
I share this only because most departments do not have the proper funds to have the required IT support needed for forensics. AND most of the time if anything goes to court the people involved are ignorant of the laws in regards to information security and chain of custody so unless the defendant or lawyer is computer security savvy there is probably a lot of evidence that gets admitted that should not have been admitted as evidence.
This is why I am confident that at least for me, if it ever happens, I will not assist in allowing an officer to gain access to my phone. It is the same as inviting them into your home, once you have given them permission to enter your residence all bets are off.
Same thing with unlocking your phone, if you unlock it for them or give them the unlock code, you just gave them permission and nothing else matters.
If I don’t give them my unlock code and I get arrested for not complying with a LEO’s orders, well they were not lawful orders, they were against my right of non self incrimination.
And then if they download my data or hack my phone without my permission, I then have the recourse I mentioned in the prior post in regards to law enforcement gaining access to business and company’s data without a search warrant since my phone is connected and tied to those systems.
So to summarize, I would not recommend anyone disobeying law enforcement based on anything I wrote, but if anyone is curious I would recommend seeking legal counsel, because my bet is if and when push comes to shove this law will be found unconstitutional and illegal.
And I for one will challenge it if I ever need to.
Falconis
10-11-2011, 10:37 AM
What if I had naked pictures of my wife on my phone? that is not illegal whatsover, but I sure in the heck dont want some guy looking at my private pictures. and it is my phone, I paid for it and pay for it. it is not public property for someone to browse through.
Yeah but it may get you out of the ticket :D. just kidding, it was a joke for anyone thinking of jumping on the how inappropriate train.
In all seriousness there are probably some training issues with this with all the conflicting information out there. It's also probably going to take a while before everything gets sorted out.
I honestly don't care what is on someone's cell phone. Only time I seize it is if it is incident to arrest and if I do that, you have ALOT more to worry about than a traffic ticket.
As to cell phones, yeah it's gonna be interesting for a few years to see what shakes down as yeses and no nos.
Falconis
10-11-2011, 10:41 AM
Honestly you say you weren't insulting or angered but you go to say he is "new" and has an ego? Sounds like he knew the law and what he was doing so how's he new and have any ego? He let you go, I'm pretty sure I would've done the same. Play games is for kids not adults.
On a second note, as a newbie to Calguns is it me or are their a lot of Cop haters on this site? As a supporter of the 2nd amendment and our citizens right to bear arms(heck give them CCW's if their law abiding) I find it odd that people would talk about disobeying a legal instruction from a LEO(as some of the post mention refusing a legal search).
Kind of funny, I have over a decade on and I still get the you're new aren't ya before I even say anything. I just find it funny when I tell them, "yeah I just learned how to arrest you this way in the academy" :) I don't know why they get angry about that.
thrasherfox
10-11-2011, 11:40 AM
Yeah but it may get you out of the ticket :D. just kidding, it was a joke for anyone thinking of jumping on the how inappropriate train.
In all seriousness there are probably some training issues with this with all the conflicting information out there. It's also probably going to take a while before everything gets sorted out.
I honestly don't care what is on someone's cell phone. Only time I seize it is if it is incident to arrest and if I do that, you have ALOT more to worry about than a traffic ticket.
As to cell phones, yeah it's gonna be interesting for a few years to see what shakes down as yeses and no nos.
Well, I dont have any of my wife or anyone else on my phone, I was just saying. But if you think it might get me out of a ticket.... hmmmm..
:)
And if I were to get arrested for something, as you said. I have bigger concerns. I just dont want to be pulled over for a tail light out and have an officer take my cell phone and spend the next 30 minutes going through it.
Not saying anyone would do that, most of my friends who are LEO's would not. But you never know.
:cheers2:
Sniper3142
10-11-2011, 6:37 PM
I do believe this "law" only pertains to those who have been arrested or pursuant to an arrest.
Cops CAN NOT just search your phone during a Traffic Stop or most other encounters.
10-8Gunslinger
10-11-2011, 7:00 PM
Hey Hitman,
Its funny I see all these post all around Calguns about how to avoid, evade and downright disobey a fellow LEO's instructions. I'm not sure where I've heard more legal mumbo-jumbo and misinformation here on Calguns or from the guys who've been locked up and what their jailhouse lawyers told them(for those that don't work in the system a jailhouse lawyer is your cellmate!). Could explain why the same idiots keep getting locked up...
retired
10-11-2011, 7:42 PM
The topic is about cell phones and whether a leo can search them. Stop with the comments on the other subject.
dirty_530
10-24-2011, 11:47 PM
A cell phone can be searched INCIDENT to arrest... That means, AFTER he was arrested. It cannot be searched to develop PC unless consent is given.
From the article, very 1st sentence...
This January in People v. Diaz (PDF), the Supreme Court of California affirmed the Court of Appeals decision that a warrantless search of the text message folder on an arrested person’s phone was valid as incident to a lawful custodial arrest.
ONLY if you are being taken to jail, and the search must be conducted in a reasonable time frame. Reasonable depends on the circumstances of the arrest.
OP: If what you are saying is true, you should contact Riverside and inform them of his actions... It's probably them reading the case law wrong, or a SGT. telling them its okay after reading it wrong. That being said, it's still WRONG.
This coming from an LEO.
This is very good info to have, Thank you!
iBkickinit
11-17-2011, 2:04 PM
Would absolutely not unlock the phone. I would be very explicit.
"Is that a request? Or a command under the color of authority. Because I am not inclined to comply with a request." "Oh, since it is a command, I am exercising my 5th Amendment right against self-incrimination. Since that would be a warrantless search, I am also invoking my 4th Amendment rights. Am I being detained? If not, am I free to go? If I am being detained, I would like to speak to your supervisor."
I would love to see them build an obstruction of justice case over that. The officer cannot compel you to unlock the phone. He can threaten all he wants, he doesn't need 'evidence' to cite me for talking on a cell-phone. I'd take my chances. Pain in the butt? yes. Worth it? Sometimes, you just have to make a point.
cruising7388
11-17-2011, 2:22 PM
Would absolutely not unlock the phone. I would be very explicit.
"Is that a request? Or a command under the color of authority. Because I am not inclined to comply with a request." "Oh, since it is a command, I am exercising my 5th Amendment right against self-incrimination. Since that would be a warrantless search, I am also invoking my 4th Amendment rights. Am I being detained? If not, am I free to go? If I am being detained, I would like to speak to your supervisor."
I would love to see them build an obstruction of justice case over that. The officer cannot compel you to unlock the phone. He can threaten all he wants, he doesn't need 'evidence' to cite me for talking on a cell-phone. I'd take my chances. Pain in the butt? yes. Worth it? Sometimes, you just have to make a point.
I would be interested in a take from a LEO aboard, but I'm under the impression that while you can be charged with obstruction of justice regarding another party, I don't think the charge can be applied to you simply because you elect not to cooperate.
Nothing wrong with your handling your situation but I think there is a better order. IMO, when dealing with any LEO that you feel is improperly leaning on you, the first thing you should do is respectfully request that a supervisor be called to the scene. I think it has a salutory effect on the behavior of an LEO that is pushing the envelope. I feel pretty confident about this because this advice was given to me by a LEO! Depending upon the jurisdiction, the LEO may not be required to call for a supervisor at your request, but your request on the record works in your favor should the situation unfortunately escalate.
Sniper3142
11-17-2011, 3:10 PM
"Cool your jets, Kojak, and get your boss out here so we can all talk."
That right their sir is SIG WORTHY!!! :D
Mario520
11-24-2011, 1:58 PM
A cell phone can be searched INCIDENT to arrest... That means, AFTER he was arrested. It cannot be searched to develop PC unless consent is given.
From the article, very 1st sentence...
This January in People v. Diaz (PDF), the Supreme Court of California affirmed the Court of Appeals decision that a warrantless search of the text message folder on an arrested person’s phone was valid as incident to a lawful custodial arrest.
ONLY if you are being taken to jail, and the search must be conducted in a reasonable time frame. Reasonable depends on the circumstances of the arrest.
OP: If what you are saying is true, you should contact Riverside and inform them of his actions... It's probably them reading the case law wrong, or a SGT. telling them its okay after reading it wrong. That being said, it's still WRONG.
This coming from an LEO.
I agree. He can't order you to unlock the phone so that he can search it without your consent unless he is taking you into physical custody pursuant to an arrest. Now, he can search your phone if you are on searchable probation and you just forgot to mention that part.
axel4488
11-28-2011, 12:21 PM
Honestly you say you weren't insulting or angered but you go to say he is "new" and has an ego? Sounds like he knew the law and what he was doing so how's he new and have any ego? He let you go, I'm pretty sure I would've done the same. Play games is for kids not adults.
What I say to him and what I think of him are two separate things. I can be the most polite, prompt gentlemen and still think the person I am talking to is a pompus *** with a stick up his bum. Great thing about not being able to read minds..
axel4488
11-28-2011, 1:10 PM
Not all cops are jerks ya know. When I first bought the Jeep, Adelanto PD pulled me over asking me why its not registered or have any plates on it. I explained that I just bought it 20 minutes ago and driving it home to Moreno Valley and they just laughed and said, "ok you check out fine. I will radio ahead to let CHP and others know that you're ok". So yeah, only some cops are baddies. Like some people are criminals.
BigRig81
11-29-2011, 1:32 AM
Hello everyone, first post for me.
I had this happen to me a few weeks ago. I'm a commercial truck driver and I was pulled in to the scales and the officer at the window assumed I had been on the phone, when I was really telling my partner ahead of me that I got pulled in. I told him on the CB, which is still legal.
When I got in to the bay, the officer asked me to hand him license, reg, med-card, log book and cell phone. I handed him everything but the phone and asked him "Am I being arrested, and if so, for what?"
He replied that he saw me on my phone and wanted proof, so he needed to search my call logs. I told him that when he arrests me or gets a warrant for the search and seizure of my property, he could have my phone. All he did was give me a dirty look, check my information and send me on my way. I checked with a friend of mine, who is a CHP officer in Merced County, about this very subject. He told me that the police are ONLY allowed to search phones(and other electronic devices) under SITA, or they have a warrant. However there are attempts to remove cellphone searches from SITA because it doesn't relate to officer safety, only investigation.
Like I said, I'm a truck driver, not a LEO so take it for what it's worth.
Take Care.
In the officer's mind, he saw you talking on the cell phone (a violation). Your phone is the evidence used in the commission of your "crime." It contains within it evidence to prove or disprove that the crime occurred. If the crime (as you claim) did not occur, then the officer would have made what is called "a mistake of fact." When an officer makes a mistake he is not liable in many cases and you are still required to comply with any lawful orders given by him. I would suggest that you not decide what is lawful unless it is something grossly out of hand. Your phone (or anything else) is subject to REASONABLE search and seizure. You don't get to decide what is reasonable or not. The criminal justice system does that for you (via police, DA, Judge, attorneys, etc.). Let's say you were actually talking on the phone and denied it to the cop (people really lie to cops? the nerve). You deny him permission to search your phone for the last call info. OK, your phone is now evidence that you committed an infraction. I will seize it and search it, because it is a reasonable search in my opinion. If you were pulled over for a different violation and I found drugs in your car and your cell phone was there, I would need a search warrant, or place it into your property when you are arrested than then can search it.
Also, if you weren't on the phone, why make a fuss? Trying to prove a point and be a tough guy? The cop let it drop probably because he didn't think it was worth pursuing. I would suggest that in the future you just suck it up and let him look at your phone to see you weren't using it. I would even apologize to you for the mistake.
CalLongGunner
11-29-2011, 8:59 AM
Which I haven't seen asked or discussed is:
Am I legally required to remember or even know the unlock code to my phone?
You have the right to remain silent. You have the right to consult an attorney. It may not sit well, but you do.
softscrubb
11-29-2011, 9:58 AM
... where to begin...
You have a right to your privacy and a right to not be intruded upon. That includes law enforcement. You have the right to not 'self-incriminate'. You have a right to remain silent (Miranda Warnings need only be advised upon a custodial arrest and interrogation of fact regarding the purpose for arrest).
If I arrest you for murder, I can still ask you questions about who you are and 'identifying' information. However, if I try to ask you about the incident or events leading up to the incident then I need to Mirandize you. Those episodes of cops where someone starts spewing out Miranda when they throw handcuffs on is not the actual way it goes.
I view giving someone a cellphone ticket as I do giving them a seatbelt ticket. I see you not wearing the seatbelt, I pull you over, you may or may not get a ticket. I see you talking/texting on your phone, I pull you over, you may or may not get a ticket. If you take me to court for the seatbelt ticket it is basically my word against yours. Your honor, I was here.. I was going there.. I saw him/her.. they weren't wearing the seatbelt.. I stopped them.. I gave them a ticket. You say you were. The judge decides. Nothing personal on either end. Next time wear your seatbelt. Same thing applies for cellphone tickets. You say your last call was an hour prior, I have no reason to not believe you so ok. Now... how long does it take you to clear your call history on a phone. 15 seconds, 20... So 'needing to look' at your phone for proof you were on it is lame and not realistic on the part of the cop and the user demanding they never called is pointless because without the celltower records it can't be proven either way. Cite.. don't cite.. let the judge work it out. No.. you do not need to give me access to the device (password), but if they tell you to give them the cellphone during the contact, go ahead. If they ask/demand for password simply say. 'Officer, I was not on the phone, I am not going to give you the password, cite me and we can go to court.'
The court is the correct venue to dispute this, not on the side of the road, not digging your head in the sand and refusing this.. refusing that.. there is no need to be aggressive. I try to explain to people that cops are like mirrors..if you are nice (even when disagreeing) then they are nice.. In 14 years of doing this job, I have never seen someone being nice getting arrested or slammed on the ground. If you are aggressive, evasive, stand-offish... the cop(s) are going to try to find out why. We get paid to be nosy. Don't make it bigger then it needs to be...
Sniper3142
11-29-2011, 11:06 AM
In the officer's mind, he saw you talking on the cell phone (a violation). Your phone is the evidence used in the commission of your "crime." It contains within it evidence to prove or disprove that the crime occurred. If the crime (as you claim) did not occur, then the officer would have made what is called "a mistake of fact." When an officer makes a mistake he is not liable in many cases and you are still required to comply with any lawful orders given by him. I would suggest that you not decide what is lawful unless it is something grossly out of hand. Your phone (or anything else) is subject to REASONABLE search and seizure. You don't get to decide what is reasonable or not. The criminal justice system does that for you (via police, DA, Judge, attorneys, etc.). Let's say you were actually talking on the phone and denied it to the cop (people really lie to cops? the nerve). You deny him permission to search your phone for the last call info. OK, your phone is now evidence that you committed an infraction. I will seize it and search it, because it is a reasonable search in my opinion. If you were pulled over for a different violation and I found drugs in your car and your cell phone was there, I would need a search warrant, or place it into your property when you are arrested than then can search it.
Also, if you weren't on the phone, why make a fuss? Trying to prove a point and be a tough guy? The cop let it drop probably because he didn't think it was worth pursuing. I would suggest that in the future you just suck it up and let him look at your phone to see you weren't using it. I would even apologize to you for the mistake.
Where to begin...
First, I am not a cop.
I disagree with what you said to a point. If a cop demanded my phone because he thought I was talking on it, I would not give it to him. I'd tell him to go ahead and write me the ticket. Now, if he stated that he thought I was on the phone and asked to see my phone logs, I might show him the phone log (with the phone still in my possession) in order to clear up his mistake.
Attitude is everything and that goes BOTH ways.
My concern with letting any LEO access my phone that they might be fishing and not just look at my recent call records. They might hook it up to a Cellbrite unit and pull all kinds of personal info off of it (contacts, SMS, etc). That is why I would not turn over my phone to a cop without a warrant. Showing him the call records while the phone is under my control I'm okay with.
softscrubb
11-29-2011, 12:40 PM
I just want to make one minor point.. under certain circumstances, if the officer believes there is evidence on your phone of criminal activity that he/she can articulate in a search warrant, they can take custody of your phone pending receipt of a search warrant whether you want to give it to them or not. (must be at felony level so obviously we have graduated beyond just talking on a phone)
Operator
11-29-2011, 12:55 PM
... where to begin...
You have a right to your privacy and a right to not be intruded upon. That includes law enforcement. You have the right to not 'self-incriminate'. You have a right to remain silent (Miranda Warnings need only be advised upon a custodial arrest and interrogation of fact regarding the purpose for arrest).
If I arrest you for murder, I can still ask you questions about who you are and 'identifying' information. However, if I try to ask you about the incident or events leading up to the incident then I need to Mirandize you. Those episodes of cops where someone starts spewing out Miranda when they throw handcuffs on is not the actual way it goes.
I view giving someone a cellphone ticket as I do giving them a seatbelt ticket. I see you not wearing the seatbelt, I pull you over, you may or may not get a ticket. I see you talking/texting on your phone, I pull you over, you may or may not get a ticket. If you take me to court for the seatbelt ticket it is basically my word against yours. Your honor, I was here.. I was going there.. I saw him/her.. they weren't wearing the seatbelt.. I stopped them.. I gave them a ticket. You say you were. The judge decides. Nothing personal on either end. Next time wear your seatbelt. Same thing applies for cellphone tickets. You say your last call was an hour prior, I have no reason to not believe you so ok. Now... how long does it take you to clear your call history on a phone. 15 seconds, 20... So 'needing to look' at your phone for proof you were on it is lame and not realistic on the part of the cop and the user demanding they never called is pointless because without the celltower records it can't be proven either way. Cite.. don't cite.. let the judge work it out. No.. you do not need to give me access to the device (password), but if they tell you to give them the cellphone during the contact, go ahead. If they ask/demand for password simply say. 'Officer, I was not on the phone, I am not going to give you the password, cite me and we can go to court.'
The court is the correct venue to dispute this, not on the side of the road, not digging your head in the sand and refusing this.. refusing that.. there is no need to be aggressive. I try to explain to people that cops are like mirrors..if you are nice (even when disagreeing) then they are nice.. In 14 years of doing this job, I have never seen someone being nice getting arrested or slammed on the ground. If you are aggressive, evasive, stand-offish... the cop(s) are going to try to find out why. We get paid to be nosy. Don't make it bigger then it needs to be...
I want more LEOs like ^this^ around. +1 for the "it's not personal" attitude from either party. LEO doesn't need my phone to give me a ticket, if he saw me, ticket me, and we will argue about it in court.
TRICKSTER
11-29-2011, 1:31 PM
Didn't write a lot of these tickets, maybe about 30 over the years. Never asked to see the phone after the stop. I figured if the person wants to go to court and lie about it, so be it, I'm getting paid either way and I know that I wrote a good ticket. If the judge throws it out, I could care less.
I only had one person fight one of these tickets and she lied, stating that she was holding/listening to her IPOD. The judge found her guilty, imagine that.
Ron-Solo
11-29-2011, 4:58 PM
Didn't write a lot of these tickets, maybe about 30 over the years. Never asked to see the phone after the stop. I figured if the person wants to go to court and lie about it, so be it, I'm getting paid either way and I know that I wrote a good ticket. If the judge throws it out, I could care less.
I only had one person fight one of these tickets and she lied, stating that she was holding/listening to her IPOD. The judge found her guilty, imagine that.
This^^^
The violation is committed when you put the phone to your ear, regardless of a call being connected.
Way too much worry about this. What good does looking at someone's call log do in a fishing expedition anyway? If you are the target of a specific investigation, then maybe, but on a general traffic stop, no.
More tinfoil is needed.
ke6guj
11-29-2011, 5:23 PM
This^^^
The violation is committed when you put the phone to your ear, regardless of a call being connected.
.
what if you are listening to a podcast or streaming music on your smartphone, is that a violation?
Regarding texting and driving, does that apply to adjusting your GPS settings or some other "non-texting" related function?
Ron-Solo
11-29-2011, 5:33 PM
what if you are listening to a podcast or streaming music on your smartphone, is that a violation?
Regarding texting and driving, does that apply to adjusting your GPS settings or some other "non-texting" related function?
Haven't read the section recently, and since I'm now retired, I don't have much need to. :D.
I always used that commodity and magic substance called common sense and rational thinking. But that's just me.....
axel4488
11-29-2011, 11:04 PM
Ok lets get these replied.
In the officer's mind, he saw you talking on the cell phone (a violation). Your phone is the evidence used in the commission of your "crime." It contains within it evidence to prove or disprove that the crime occurred. If the crime (as you claim) did not occur, then the officer would have made what is called "a mistake of fact." When an officer makes a mistake he is not liable in many cases and you are still required to comply with any lawful orders given by him. I would suggest that you not decide what is lawful unless it is something grossly out of hand. Your phone (or anything else) is subject to REASONABLE search and seizure. You don't get to decide what is reasonable or not. The criminal justice system does that for you (via police, DA, Judge, attorneys, etc.). Let's say you were actually talking on the phone and denied it to the cop (people really lie to cops? the nerve). You deny him permission to search your phone for the last call info. OK, your phone is now evidence that you committed an infraction. I will seize it and search it, because it is a reasonable search in my opinion. If you were pulled over for a different violation and I found drugs in your car and your cell phone was there, I would need a search warrant, or place it into your property when you are arrested than then can search it.
Also, if you weren't on the phone, why make a fuss? Trying to prove a point and be a tough guy? The cop let it drop probably because he didn't think it was worth pursuing. I would suggest that in the future you just suck it up and let him look at your phone to see you weren't using it. I would even apologize to you for the mistake.
If you had bother to read earlier posts, you would know unless i committed a MISDEMEANOR OR ABOVE, then you can seize my phone. Unless you have a warrant, well then it sucks to be you doesn't it? No I wasn't proving a point. I am proving that my rights are not going to be hindered for the sake of security. Oh, and a cop can not give me an order last time I checked. He can ask all he wants, but wont get anything other than the what is deemed necessary and WITHIN my rights.
I would suggest that in the future you just suck it up and let him look at your phone to see you weren't using it. I would even apologize to you for the mistake.
That. That comment right here makes me a little mad. That is like saying, "well let me see inside your trunk without a warrant since you know, you have nothing to worry about if you are completely innocent". No the point is we have warrants and search and seizure protocols for a reason. To keep our right and keep us from being a police/ big brother state.
... where to begin...
You have a right to your privacy and a right to not be intruded upon. That includes law enforcement. You have the right to not 'self-incriminate'. You have a right to remain silent (Miranda Warnings need only be advised upon a custodial arrest and interrogation of fact regarding the purpose for arrest).
If I arrest you for murder, I can still ask you questions about who you are and 'identifying' information. However, if I try to ask you about the incident or events leading up to the incident then I need to Mirandize you. Those episodes of cops where someone starts spewing out Miranda when they throw handcuffs on is not the actual way it goes.
I view giving someone a cellphone ticket as I do giving them a seatbelt ticket. I see you not wearing the seatbelt, I pull you over, you may or may not get a ticket. I see you talking/texting on your phone, I pull you over, you may or may not get a ticket. If you take me to court for the seatbelt ticket it is basically my word against yours. Your honor, I was here.. I was going there.. I saw him/her.. they weren't wearing the seatbelt.. I stopped them.. I gave them a ticket. You say you were. The judge decides. Nothing personal on either end. Next time wear your seatbelt. Same thing applies for cellphone tickets. You say your last call was an hour prior, I have no reason to not believe you so ok. Now... how long does it take you to clear your call history on a phone. 15 seconds, 20... So 'needing to look' at your phone for proof you were on it is lame and not realistic on the part of the cop and the user demanding they never called is pointless because without the celltower records it can't be proven either way. Cite.. don't cite.. let the judge work it out. No.. you do not need to give me access to the device (password), but if they tell you to give them the cellphone during the contact, go ahead. If they ask/demand for password simply say. 'Officer, I was not on the phone, I am not going to give you the password, cite me and we can go to court.'
The court is the correct venue to dispute this, not on the side of the road, not digging your head in the sand and refusing this.. refusing that.. there is no need to be aggressive. I try to explain to people that cops are like mirrors..if you are nice (even when disagreeing) then they are nice.. In 14 years of doing this job, I have never seen someone being nice getting arrested or slammed on the ground. If you are aggressive, evasive, stand-offish... the cop(s) are going to try to find out why. We get paid to be nosy. Don't make it bigger then it needs to be...
The only problem I have going to court over such things is:
1. You are treated as guilty until proven innocent
2. Your fine or "bail" as they call it to get away with taking your money is needed to be even seen before a judge.
3. after you have proven your innocence, it takes the courts over 4 months just to give you your money back.
Also, I respect you for what you do to keep the peace but I believe I the taxpayer, do not pay you to be nosy. I pay you to uphold the law and constitution in a fair and civil manner.
TRICKSTER
11-29-2011, 11:31 PM
The only problem I have going to court over such things is:
1. You are treated as guilty until proven innocent
2. Your fine or "bail" as they call it to get away with taking your money is needed to be even seen before a judge.
3. after you have proven your innocence, it takes the courts over 4 months just to give you your money back.
Also, I respect you for what you do to keep the peace but I believe I the taxpayer, do not pay you to be nosy. I pay you to uphold the law and constitution in a fair and civil manner.
Well, you can always refuse to sign the cite and demand to see a magistrate.
That way, you don't have to post bail, instead you can sit in jail until a judge is ready to see you.
axel4488
11-29-2011, 11:56 PM
Well, you can always refuse to sign the cite and demand to see a magistrate.
That way, you don't have to post bail, instead you can sit in jail until a judge is ready to see you.
still either way its proven guilty until innocent now.
TRICKSTER
11-30-2011, 12:07 AM
still either way its proven guilty until innocent now.
No, your not guilty till you plea guilty or are found guilty after trial.
Just because you interpret the system that way doesn't make it so.
axel4488
11-30-2011, 12:09 AM
No, your not guilty till you plea guilty or are found guilty after trial.
Just because you interpret the system that way doesn't make it so.
A system that believes innocence until proven guilty wouldn't demand "bail" for an infraction. Its they're way of saying well you're guilty anyway so we are going to make sure we get that revenue fast.
TRICKSTER
11-30-2011, 12:21 AM
A system that believes innocence until proven guilty wouldn't demand "bail" for an infraction. Its they're way of saying well you're guilty anyway so we are going to make sure we get that revenue fast.
No, in actuality, it's a way to make sure you show up in court. Like I said, can't control the way you interpret it, can only point out reality. Plus it's not that way in all traffic courts, some don't ask for bail.
Ron-Solo
11-30-2011, 12:46 AM
Axel, if your looking for sympathy, you're in the wrong forum. Try off topic, rather than come into the law enforcement forum and piss and moan about how the system is messed up.
axel4488
11-30-2011, 12:48 AM
No its just evidence to back up what I believe is happening. No pissing and moaning.
TRICKSTER
11-30-2011, 1:05 AM
No its just evidence to back up what I believe is happening. No pissing and moaning.
Exactly. Just because you "believe" something doesn't make it so. You can reject reality and substitute your own all you want, but that doesn't make it the truth.
Samuelx
11-30-2011, 6:33 AM
"Also, I respect you for what you do to keep the peace but I believe I the taxpayer, do not pay you to be nosy. I pay you to uphold the law and constitution in a fair and civil manner."
Holy Cluelessness Batman!
Sniper3142
11-30-2011, 7:45 AM
"Also, I respect you for what you do to keep the peace but I believe I the taxpayer, do not pay you to be nosy. I pay you to uphold the law and constitution in a fair and civil manner."
Holy Cluelessness Batman!
I'm not a cop but...
That's a bit of a fine line IMHO.
Many people want the police to be observant, to investigate potential crimes, to ask the right questions to the right people at the right time.
I remember a situation where the public was angered when it was learned that a child murderer had been pulled over by an officer (possibly with the child in the vehicles trunk) but let go after the traffic issue had been addressed. It's probably hard to figure out who the "bad guys" are without asking probing questions.
Ron-Solo
11-30-2011, 10:57 AM
No its just evidence to back up what I believe is happening. No pissing and moaning.
Evidence? Your opinion is not evidence. Your whining and wishing does not make something evidence.
HIG541
11-30-2011, 6:34 PM
You are so far off base. Before you come into the "law enforcement" forum I suggest you read the rules of this forum. Your invocation of your " 5th Amendment" rights does not preclude the officer from seizing evidence or taking enforcement action.
the 4th amendment does though;)
softscrubb
11-30-2011, 7:28 PM
I think it was fairly obvious to most readers that I was simplifying what law enforcement does when I said 'we get paid to be nosy'. Whatever term you want to use, it is our job to be inquisitive (feel better about that one?) and ask those probing questions when we think something is fishy. Yes, it can be as simple as me saying 'huh.. this doesn't seem right' and asking questions and looking around to figure out what is missing in the little equation of 'our contact' with each other.
I suggest that if you have never been on a 'ride-a-long' with one of your local agencies, that you do so. Look for the busiest department and go on a friday or saturday night swing shift. That will give you an eye-opening experience into what police work is about.
I get it, everyone is worried about 'the man' coming down on you. We (collective law enforcement) are far to busy to worry about the naked pictures of your wife / girlfriend / boyfriend / beastfriend... I don't really care that you don't have your seatbelt on... or are talking on your cellphone.
What I do care about is the fact that not having you or your kids without a seatbelt turns you into a human missile. You only need to see what happens to the human body as it explodes on impact against the solid freeway when it gets ejected at 60 mph.. once... to realize you do not want to see it again. You only have to see the shocked look on someones face when they realize they are missing their arm.. while 'I was just on my cellphone a second' is uttered by the guy who just t-boned the armless guys car, once.. before you realize it could have been completely avoided.
Think big picture guys.. what is the purpose of these laws? They aren't there to harass you or make you feel bad enough to want to invoke the mighty wrath of 'the 5th amendment'... it is to protect people from themselves. That really is the purpose of many laws we have, to protect people from people. That simple. Not so the City can get more money, not so the cop can see your dirty pics on your phone.. but to keep people alive, safe and happy with all of their attached limbs...
now.. don't talk/text/picmessage/tweet/facebook while you are driving and wear your damn seatbelt...and enjoy life...
scrubb
biochembruin
11-30-2011, 7:37 PM
the 4th amendment does though;)
Actually, the 4th doesn't either. See, you got to read the whole thing, and pause on the word, "unreasonable."
HIG541
11-30-2011, 8:02 PM
Actually, the 4th doesn't either. See, you got to read the whole thing, and pause on the word, "unreasonable."
thats what the wink is for:D
biochembruin
12-02-2011, 7:01 AM
thats what the wink is for:D
Ah, got it!
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