Jerry Blows The Call

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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41 Responses

  1. Avatar Pat Cahalan says:

    Hear, hear, Mr. Likko. Hear, hear.Report

  2. Avatar DensityDuck says:

    “I heard him say he was gonna kill that guy, and then he took out his gun.”

    “Did you have a search warrant?”

    “…no? Why did I need one?”

    “Communications between private individuals are protected information, and since he hadn’t committed any crimes at the time you shot him, we have no choice but to find you guilty of murder.”Report

    • Avatar Patrick Cahalan says:

      So you don’t believe there is anything to be said about what constitutes a legal, let alone practical, expectation of privacy?

      That strikes me as fairly amusing, “Density Duck”.Report

      • Avatar DensityDuck says:

        If immediate communications–such as might be found on a cell phone–are considered private information that needs a warrant to retrieve, then how can “things I say” not be considered such?

        Does information become private and inviolable just because I’m saying it into a telephone? If I’m talking on the phone in a public place and someone overhears me, are they violating my privacy?Report

        • Avatar Patrick Cahalan says:

          > Does information become private and
          > inviolable just because I’m saying it
          > into a telephone?

          Yes, actually. By law, they have to get a warrant to eavesdrop on your phone conversation, yes? Are you suggesting that this is unreasonable and we ought to get rid of it, because all conversations are public?

          > If I’m talking on the phone in a public
          > place and someone overhears me, are
          > they violating my privacy?

          Not in California. You have no expectation of privacy in such an occasion.

          Similarly, you have no expectation of privacy if the cops are executing a warrant (or engaging in PC situations) and they overhear you say something in real time, IIRC.

          So if the cop pulls you over for speeding, and as he’s walking up to the window he hears you say to a passenger, “Thank God we hid the drugs in the trunk!”, it’s probable cause for him to search the trunk. If he walks up to the car and sees you text something, he has no probable cause to assume that your text has anything to do with criminal activity.

          > If immediate communications–such as
          > might be found on a cell phone–are
          > considered private information that needs
          > a warrant to retrieve, then how can
          > “things I say” not be considered such?

          Because “things on my phone” include “conversations that don’t include the cops” whereas in your hypothetical (cop says, “I heard him say he was gonna kill that guy, and then he took out his gun.”) the conversation includes the cops?Report

          • Avatar Burt Likko says:

            In the hypothetical in which the cop says “I heard him say he was gonna kill that guy, and then he took out his gun,” we have an imminent threat of violence. Obviously an arrest is warranted, and that arrest should include a search of the would-be shooter’s person to remove weapons from him and probably restraints on his body so that he is unable to actually hurt anyone.

            But I still don’t see how searching the would-be shooter’s cell phone after the fact is even rationally related to the threat of violence. Even if the statement (“I’m gonna kill that guy”) was made in a phone call, the identity of the person on the other end of the call is not relevant to much of anything.

            We could change the hypothetical. Maybe the would-be shooter gets arrested for the threat of violence, and then when the guy is cooling his heels, restrained, in the back of the patrol car, the cop finds out there are other outstanding warrants for his arrest. One such warrant includes, I don’t know, wire fraud conducted over a cell phone. Even then I think there is still a need to get a warrant before searching through the phone, although now I’d agree that there is probable cause to link the phone to a crime and I’d say the warrant should issue. (I’m not saying the phone shouldn’t be searched; it should. With a warrant.)

            There is no exigent circumstance, no threat of violence, no ready means of eviscerating evidence, that would require an immediate search of the phone. That’s why the search of the phone ought to be done only with a warrant.Report

    • Avatar Burt Likko says:

      We’re not talking about exigent circumstances here, which is what you’re describing, DD. And how would searching a cell phone help in a situation like that anyway?Report

      • Avatar DensityDuck says:

        Exigent circumstances are a defense against the accusation of illegal search? The suspection that the phone’s user was engaged in criminal activity certainly seems to constitute a claim of exigent circumstances.

        This is not 1952. Telephones are not something that’s bolted to the wall. There’s a reasonable expectation, based on the behavior of, well, everybody, that you carry with you everywhere and use all the time will have information relevant to your current activities.Report

        • Avatar Burt Likko says:

          Keep in mind what issue is raised here: the exclusionary rule and warrants. We’re not talking about a lawsuit against the police for the search here. If a search was done unreasonably, then the evidence gained from that search is excluded from the trial. Exigent circumstances are things that make a search more reasonable than it would have been otherwise. You mentioned above the possibility of a threat of immediate violence; that would be such a circumstance because what is reasonable in a field situation pregnant with violence is different than what is reasonable in, say, the station-house with an arrestee in handcuffs sitting secured to a chair.

          I absolutely agree with you that telephones today are significantly different than in the Fifties when some of the case law about what is reasonable and not concerning phones and crime started to be handed out. That’s why I take the position I do — a search through someone’s iPhone is a much more intrusive search, and much easier to accomplish, than a search through records of phone calls was sixty years ago.Report

          • Avatar DensityDuck says:

            I think that JG New’s comment below sums up my position, which is that if the police are allowed to look in my pocket then there’s no possible argument that prevents them looking in my phone.

            Note that the issue here was not that the police looked through the guy’s phone, but that he immediately confessed. The first rule of dealing with the cops is to not talk to them. The second rule of dealing with the cops is to not talk to them.Report

            • Avatar Burt Likko says:

              …there’s no possible argument that prevents them looking in my phone.

              A cop can look in your pocket to see if you have a gun or a knife, because there is a need to disarm you and make it more difficult for you to kill a cop while you’re resisting arrest.

              The electronic data on a phone is not susceptible of use as a weapon.Report

              • Avatar DensityDuck says:

                Please direct followup comments to JG New’s post.Report

              • Avatar Burt Likko says:

                But I was responding to you, DD, not to JG New. I’ve read JG New‘s post comment and it is (so far as I know) correct as to what the law is. The Diaz case and Governor Brown’s veto make it clear that objectively, the law is that after you’ve been arrested, the police can look at any data on your phone whatsoever, an an incident of the arrest itself (just like a pat-down).

                There is no disagreement at all about what the law is. I thought we were discussing what the law ought to be.Report

    • Avatar James Vonder Haar says:

      This strikes me as saying that, because, when making a stop, police have probable cause to search a car when marijuana is sitting on the dashboard, it is absurd to deny them the right to search a car any time they make a stop.Report

  3. Avatar Herb says:

    “As a practical matter, all warrantless cell phone searches are legal now.”

    Is that really true? Surely they still need probable cause….Report

    • Avatar Burt Likko says:

      To make the arrest in the first place, yes they do. (Most of the time.) The question is what constitutes a “reasonable search” once an arrest is made, and what constitutes an additional search which would require a warrant. If you want to argue that searching through a cell phone is like a pat-down, then you’re in good company — both the California Supreme Court and the Governor agree with you! I do not.Report

      • Avatar Herb says:

        Hmm…not sure I’m eager to call searching a cell phone is like a pat-down, but I do think a PC search of a cell phone that’s suspected of being used in a crime is quite reasonable.Report

        • Avatar Patrick Cahalan says:

          I’m not sure you can ever have a case where a cell phone *can’t* be suspected of being used in a crime. Heck, even the most unimaginative police officer in the world could probably think of a dozen or so scenarios wherein the phone might be related to whatever crime he’s arresting a suspect *for*.Report

          • Avatar Herb says:

            True, but you’re not talking about “best practices” at that point. You’re talking about bad cops.Report

            • Avatar karl says:

              No, you’re not talking about “bad cops.” You’re talking about cops — and if your cops don’t act like that I’d sure love to live in your neighborhood.Report

            • Avatar DarrenG says:

              No, I think he’s talking about what’s legal and allowable vs. what’s not.

              Sadly, it’s now perfectly legal and allowed for cops to go on such fishing expeditions in California.

              Jerry did, indeed, blow the call.Report

        • Avatar Burt Likko says:

          If there is PC to search a phone that is already in police custody, then getting a warrant before searching it seems like it would not be a significant imposition on the police.Report

          • Avatar Herb says:

            It’s probably not a big imposition, but isn’t that somewhat different from how police treat searches of cars, boats, or suspicious packages? If they have PC, they search. If they don’t, they get a warrant.

            Right?Report

            • Avatar Burt Likko says:

              If they don’t have PC, then the warrant application is likely to be denied, because PC is typically the threshold for getting a warrant in the first place.

              If you want to argue that PC is the appropriate standard for a warrantless search of an arrestee’s cell phone, I would concede that is well within what the case law permits(see JG New‘s comment, infra); I am just not a fan of this line of case law, for reasons stated in the OP. In the Diaz case, I think the cops had PC to search the phone (drug dealers frequently use cell phones to transact business) and my only objection is that I think they should have got a warrant before doing it.Report

  4. Avatar JG New says:

    I am cautiously inclined to agree with your instincts re privacy, but the case law tends to argue against it. There is a line of federal cases (and some other state cases) that hold that a cell phone is a “container” and, as such, may be searched incident to arrest without a warrant, much as a wallet or woman’s handbag may be searched, See, e.g. United States v. Deans, 549 F.Supp.2d 1085, 1093–94 (D. Minn. 2008). If the personal information was carried on the arrestee’s person in paper (in a notebook or an address book, say), there seems to be little question that no warrant would be required to search it incident to a valid arrest conducted with PC.

    The seminal case here seems to be the Supreme Court’s holding in United States v. Robinson, 414 U.S. 218 (1973), in which the Court held that “containers” found upon a person incident to arrest may be searched without “additional justification.” There’s a good review of the current case law on the subject of cell phone searches incident to arrest in Smallwood v. State, 61 So.3d 448 (Fla. App.) 2011.Report

    • Avatar Mad Rocket Scientist says:

      If I was only to search the contents of your phone (call history, texts, contacts, etc.), then the container argument might hold water. But a cell phone search can offer up a lot more, such as email (not necessarily stored on the phone), calendar data (not on the phone), etc.

      A cell phone search can grant the police access to your entire online life.Report

      • Avatar Patrick Cahalan says:

        Not mine! Nyah!Report

        • Avatar Kimmi says:

          mine is off. Otherwise, godzilla or king kong might show up.
          (yinz do know about being able to track someone based on their cell phone, right?)
          [taking me seriously is inadvisable, though I do not lie.]Report

          • Avatar Patrick Cahalan says:

            I leave my phone off and/or leave it at home often enough that if I ever have to answer for my movements in a court of law, the jury can have a reasonable doubt that the position of my cell phone in any way represents a predicable measure of my position in the world, at any time, without inferring nefariousness.

            I do this not by design, it’s just the way I deal with the phone. Call it an unintended feature.Report

            • Avatar Dan Miller says:

              Does that really work? I could see this proving that if your cell phone is at home, it doesn’t mean you’re at home. But it can’t prove that you were at home when your phone was turned on miles away, so having your phone own would still work as a tracking device.Report

              • Avatar Kimmi says:

                ya can always track the phone if it’s on. but who turns it on, except when you want to be seen or heard from?Report

              • Avatar Patrick Cahalan says:

                It does mean that, “His phone was off at the time of the murder, isn’t that convenient!!!” doesn’t hold a lot of water. My phone is off about a third of the time.Report

      • Avatar Lyle says:

        How does that differ with searching your appointment book if paper, which it appears is ok. Or if you carried it with you a diary. JG New answered a question I had re the paper version of a cell phone as a container. It seems to me that the fact that the information is in digital form does not transform the facts of the case. With the appointment book one could get calendar data, and the like.Report

        • Avatar Mad Rocket Scientist says:

          Sure, if the calendar data is stored on the phone, it would be analogous. If I synch my phone up with my gmail & google calendar, then instead of finding my datebook, what the police have is the key to a safety deposit box that happens to hold my mail & datebook.Report

          • Avatar Lyle says:

            Of course if you were carrying the physical documents in your car the police could search them. If you think about it syncing email and the like is sort of like carrying the physical documents around with you as well. Of course I have only a pots cell phone with not even a camera. The only info on it is a few phone numbers, but then I am retired.Report

            • Avatar Will Truman says:

              This is… a really good point. There was a reason I couldn’t quite put my finger on that I couldn’t get excited about this issue and this is it.Report

            • Avatar Burt Likko says:

              I see the point, but a modern cell phone is more like a computer than a notepad. The information on it is not open to the casual observer. It requires navigating through several screens to get at the information. A fair amount of the information on the phone is not stored locally in the phone’s memory card, but is instead stored off-site and synched with the phone when needed. Should the police be able to open up and start browsing around my laptop as an incident of a search? I say, no, that sort of thing is not reasonably related to the process of arresting me.

              And who says the police ought to be able (without a warrant) to look through a notebook after an arrest, anyway? Mad Rocket Scientist offers an analogy to a safety deposit box — something that pretty clearly does require a warrant before it can be searched.Report

              • Avatar Lyle says:

                One must assume that the off phone info is password protected, as indeed all voice mails are. If you have a weak password Newscorp will come calling to get your messages. Perhaps the solution is to keep the info in password protected form in the cloud and only view on demand if this is a concern.Report

              • Avatar Mad Rocket Scientist says:

                So all of my phones are password protected, which means the only way police could search my phone is to either demand my password, or break it, both of which, in my opinion, should require a warrant.Report

  5. Avatar Scott says:

    I guess the Dead Kennedy’s were right about Jerry after all.Report

  6. Avatar Burt Likko says:

    “Container” advocates — please consider this recent case. I’m interested in your reaction.Report