No officer, you may not touch my baby that way

My Baby







When trying to get one of these blog things off the ground, it’s probably not the best idea to limit your audience too much. Regardless, I have recently posted pieces directed at some pretty exclusive groups, namely, those who have stuff and those who use technology. As evidence of the poorness of that blog marketing strategy, neither of those posts has exactly gone viral.

Anyhow, I refuse to be slave to the masses, and I will write whatever and to whomever I want. So today, I even further restrict my audience to those elite few out there with some sort of smart phone. So as to accommodate at least a marginally larger audience, I will define smart phone as anything that you carry around that makes phone calls and connects to the interwebs.

Now, normally when I write about phones and criminal justice, I’m talking about how your phone can be used against the police. But today, out of a sense of fairness and balance, I address how the police can use your phone against you.

First, a little background:

The Fourth Amendment is supposed to protect us from unreasonable searches and seizures. The Supreme Court has distorted that simple concept to allow police to do all sorts of bad stuff for all sorts of reasons that have very little to do with reasonableness. Today’s example is the “search incident to arrest.”

Basically, the Court has held that if you are lawfully arrested, police may search you. The original reasons for this type of search were (1) officer safety (the police trump card for most 4th Amendment violations) and (2) potential destruction of evidence (also pretty effective police argument in many 4th Amendment violation situations). The Court first decided that officers could search arrestees without a warrant to make sure they didn’t have weapons with which to harm the officers and to make sure they didn’t destroy evidence post-arrest. Not completely insane, right? Just wait.

The Court has since expanded the search incident to arrest to allow officers to search any container in any area that was recently within your control prior to your arrest, just to fish for evidence. You see, the Court likes to make bright-line rules that are easy for police to follow so that police never even have to consider silly abstractions like the reasonableness requirement contained in the Fourth Amendment.

So what does this have to do with your phone (as if you haven’t figured it out already)?

Well, the natural implication of the Court’s logic and holdings is that if you are arrested, police may search your phone (a container) for evidence, without a warrant and without any suspicion that they will actually find anything in there.

Few courts have really tackled this exact issue so far, but most have rubber stamped police intrusion into texts, phone books, and other phone data following a “lawful” arrest. Here in Virginia, there don’t seem to be any state cases directly on point, and the 4th Circuit has allowed searches incident to arrest of electronic devices including phones.

Some of you may be thinking that I wasted your time making you read this far by not limiting the audience even more at the outset to only include criminals.

“Well, I won’t ever get arrested so why should I care?”, you might say.

I would make two points:

1) Criminal laws are so extensive that no one knows everything that is illegal. The Wall Street Journal today lamented the federal government’s overcriminalization addiction and its exclusion of mens rea (criminal intent) from endless numbers of criminal laws, so that more and more people are committing crimes without even knowing it, much less doing it on purpose. As the WSJ article points out, the maxim “ignorance of the law is no excuse” no longer makes sense when no human can possibly know all the laws because the government has criminalized almost everything.

2) Most states allow for arrests for minor offenses (even though arrests may not be all that common). And the Supreme Court has already said it’s okay to arrest someone for something as minor as a seatbelt violation (See Atwater v. Lago Vista). And all states have criminal and traffic codes so extensive that police can follow anyone for a few minutes and pull them over and cite them. AND that means just about everyone who drives could be arrested if some pseudo-military government thug wants to fuck with them.

So basically any of you could be arrested at any time at the whim of a government thug. At that point, according to the logic that follows from the Court’s existing search incident to arrest doctrine, said thug can go through anything and everything on your phone.

One state (unfortunately not one of the ones where most of you, my current readers, live), has taken a huge step toward protecting its people from these unreasonable intrusions into the vast amounts of private information that can be stored in a phone. The California legislature just unanimously passed a bill that, if signed by the governor, will make it illegal for police to search a portable electronic device without a warrant.

It is unfortunate that courts have become so complicit in law enforcement destruction of civil rights that the 4th Amendment no longer protects us from unreasonable searches and that legislatures have to make new laws to fill in the gaping holes that the courts and cops have created in the Bill of Rights. But it is encouraging that at least one elected body has recognized the problem and done something to protect the people it represents.

Every state government (especially the one in the state in which I live) and the feds should do the same.

If the courts will not protect us, we have to take action to protect ourselves. Chances are there is someone who represents you who you can contact with that little machine in your pocket (the phone, I mean) who needs to know that you would like your rights protected (Here is a good place to find their info).

Let ‘em know. And spread the word.


Be the power.


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