U.S. Supreme Court Rules 9-0 That Police Need Search Warrant to Check Your Cellphone

[EagerBeaver]

Yes but what is a game changer is being arrested and what I don't know is what might constitute an arrest under this decision - which could arguably encompass being detained at the border. Here is the decision:

http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf

You may be correct, but the lynchpin of Fourth Amendment jurisprudence is the reasonableness test. How is it reasonable for a detained person at the border to have their cellphone searched? This is functionally indistinguishable from the situation at issue in these cases that were decided by the US Supreme Court.

In my book arrest means your ability to move about as you freely choose has stopped due to being to detained.I have handled false arrest cases in which the claim of arrest is detainment by a store security person. I do not see any functional distinction between a police arrest and a border agent's detainment of a person for further scrutiny.

Please also note that there is some discussion by the court of the reasonableness test as applied to cellphone searches. You are going to have to apply that same rationale to how reasonable it is for a customs and immigration agents to be searching cellphone data. We are not talking about searching somebody's trunk or glove compartment or something in plain view, necessarily, all of which would typically be exempted. There is no reasonable expectation of privacy when you go to the border and have something hidden in the trunk of your car or even in your suitcase for that matter. But you do have a reasonable expectation of privacy regarding your personal emails and your personal fucking shit in your cellphone!!!!!!!!!!!! There is a clear limit to what is encompassed within the reasonable expectation of privacy, and this goes beyond it.

 

[EagerBeaver]

cornpone,

Another thing to consider is that I, like many people, have my work email on my smartphone. This includes many privileged correspondence as well as the medical records of third parties which are protected by HIPAA among other federal privacy laws. Some of it is encrypted, some of it is not sent to me as encrypted. How is it reasonable for any third party to look at that information without a search warrant signed by a judge? This is 2014 and we are able to carry a lot of protected and private information on our smartphones and there is a litany of federal laws protecting that information. It cannot be reasonable to access that information on a whim. Theoretically the border guards could then search phones, obtain private data, and then sell it. This is exactly what happened with Michael Schumacher's medical records. And people wonder how shit like that happens- it happens because privacy laws are not enforced.

 

[michael99]

Very interesting discussion.

Ties right in with a discussion we had returning from a ten day trip to the US a few days ago.
Seems that the US has turned into a police state especially when it comes to crossing the border but also in general - in the US one can just kiss their privacy good bye, laws or no laws.

 

[Sol Tee Nutz]

When you know most ( all ) Muslim countries dislike you along with numerous other countries you need to be on guard.

 

[legmann]

I, like many people, have my work email on my smartphone. This includes many privileged correspondence as well as the medical records of third parties which are protected by HIPAA among other federal privacy laws. Some of it is encrypted, some of it is not sent to me as encrypted. How is it reasonable for any third party to look at that information without a search warrant signed by a judge? This is 2014 and we are able to carry a lot of protected and private information on our smartphones and there is a litany of federal laws protecting that information. It cannot be reasonable to access that information on a whim. Theoretically the border guards could then search phones, obtain private data, and then sell it. This is exactly what happened with Michael Schumacher's medical records. And people wonder how shit like that happens- it happens because privacy laws are not enforced.

Excellent point.

 

[Cornpone]

U.S. Supreme Court

Those who hold no value for their privacy rights are doomed to eventually lose them. We see from some responses in this thread that the expectation of privacy in the face of government intrusion has slowly eroded. You have to decide whether you want to be the government's gerbil or your own fucking man. That is really the choice that is being made here.

Greetings to All,

I think that some misinformation has been posted (I am sure in all good faith) that could be harmful to those the U.S. border patrol agents choose to search. I make this post not in any argumentative sense but in a genuine effort to be helpful.

Anyone crossing into the U.S., whether U.S. citizen or not, does so, generally speaking, WITHOUT ANY FOURTH AMENDMENT PROTECTION. The right to search at the U.S. border is virtually unrestricted. No warrant is required, nor is reasonable cause. This has been and remains "black letter law" for about as long as the U. S. has been an independent nation. So, allow me to suggest that attempting to assert a constitutional right which does not exist is likely to produce only a pissed off border agent who may, thus, be inclined to go at it with a zest that is likely to be unpleasant, to say the least. If anyone wonders how I came to this conclusion, I was taught it in 1963 at the University of Virginia law school. If anyone wishes to check it, they need only Google: Federal Constitutional Law, Fourth Amendment, border search.

Sorry, but that's the law.

 

[Cornpone]

OOPS. Sorry guys, I didn't see that the Mods did, indeed, let my first post on. Oh well.

 

[EagerBeaver]

Cellphones did not exist in 1963 and smartphones did not exist until a few years ago. The law is constantly evolving. You said in your posts "generally speaking" searches are done without Fourth Amendment protection. The test is reasonableness. I don't see how searching private data on a cellphone is reasonable or in furtherance of what a border agent's duties are. Please explain how it is within the normal purview of what a border agent should be doing. I get that Fourth Amendment protection does not apply generally, but there is a limit to what they can do.

Can they stick a probe up your asshole? I think not.

 

[Cornpone]

At the risk of becoming tiresome, it is my guess that if and when the Supremes rule on this issue, the border patrol will come out on top. Again, dear Beaver, I believe that reasonableness has nothing to do with the matter. This entire principle seems to be based on the sovereign's right to protect the nation. Given what is going on internationally these days, I seriously doubt that the Supremes will limit the general principal. If the border agents can do a body cavity search (which they can), it is my guess that they can, and will be allowed to, search my cellphone, or anyone else's.

So, I think that at present the law remains the same, and if that be true, and one is not carrying in one's cellphone evidence of a plot to assassinate Obama or blow up half of New York, (in other words, nothing really to hide) the path of wisdom is to cooperate.

Last thoughts, and then I promise, no more posts on this, what would make them want to spend the huge length of time required to plow through a loaded cellphone? In other words, it seems to me that the risk of a cellphone search is pretty remote. Just don't wear your turban.

Wishing all a lifetime of pleasant and speedy border crossings, I remain,

Your Humble Servant,

Cornpone

 

[EagerBeaver]

Cornpone, the topic came up because there is another thread called "Hassled at the Border" in which a cellphone search was mentioned, or else it was mentioned off the board, and I was greatly surprised to hear about it. I agree that the privacy right endorsed by the U.S Supreme Court has not been specifically tested at the border, but i would argue that if you are detained by border authorities it is not different than police arresting and detaining you. Will a border agent understand all this? Probably not. This is meant to be an academic discussion, although frankly if my cellphone was searched during a detainment at the border, I would squawk because I have a smartphone and there is email on it with privileged information that no third party is entitled to see, and federal law says so.

 

[Sol Tee Nutz]

Can they stick a probe up your asshole? I think not.

I was at the Montreal airport a few years ago and the person beside me was checked for everything, carry on checked, body pat down, the man started to complain and I mentioned to him to keep calm or he would gat a cavity search. Well the security lady heard me and said to keep quiet or I would be getting the cavity search, I said I welcome it as I pay good money for that usually.... Big grin on her face.