Posted on 04/30/2014 7:41:12 AM PDT by Kaslin
America is known as “The Land of the Free,” but with the world’s highest prison population where more than 12-million arrests were made in 2012 alone, the statement’s accuracy is open to question. According to the Wall Street Journal, more than half of American men will be arrested at least once in their lifetime, and a 2011 study reported by TIME suggests that one out of three young adults will be arrested at least once by the time they turn 23.
In an “arrest-first-ask-questions-later” system, innocent citizens routinely find themselves in front of a mug shot camera -- and as the Institute for Justice routinely notes, have their assets seized -- even if charges are never filed. These scenarios create problems that can haunt a person for years, if not a lifetime. It is, for example, extremely difficult (bordering on impossible) in many states to fully clear arrest records even if formal charges were never filed. Compounding the problem is an increasing number of jurisdictions in which DNA samples are gathered (and data-based) from persons who are simply arrested.
It is axiomatic that, no matter how much power government has, it inevitably seeks more. A perfect example are two companion cases argued yesterday before the U.S. Supreme Court, in which the High Court will soon decide whether police officers have the right to search without warrant the cell phones and other personal electronic devices seized from arrested individuals.
Government advocates argue that the same power granted to police officers to search the persons of arrested individuals to protect either the officers’ safety or to prevent evidence from being destroyed, should apply equally to cell phones. However, as privacy activists correctly counter, this opens the door to wholesale abuse of the Fourth Amendment rights of innocent civilians caught in the jaws of a zealous criminal justice system.
The power to search cell phones and other electronic devices without warrant or reasonable suspicion already is asserted by the federal government at border crossings; a power that on its own raises a number of red flags. However, police now are demanding similar authority with anybody they arrest, for any reason. Moreover, unlike at the U.S. border where America’s national security interests are of legitimate concern (though not so much as to permit the government to ignore the Constitution), no such argument can be made in the day-to-day operation of local and state police, when people are arrested for every manner of alleged offense, from improper lane changes to drug trafficking.
When the decisions were made years ago to permit police to search an arrested individual for immediate evidence at risk or to prevent harm to the arresting officer, smart phones (which contain extensive and detailed information including photos, conversations, physical location, and financial records) did not exist. Extending that same power to search to today’s electronic devices is, as the San Jose Mercury News notes, “equivalent to letting [police] search their entire home for all of [a suspect’s] personal financial and medical records,” which far exceeds any search deemed reasonably incident to arrest searches.
Nobody is arguing police should be prohibited from accessing evidence that can be used to prosecute criminals. Privacy advocates and constitutional scholars merely assert that police must use warrants to obtain this information. “Looking through the phone’s contents requires its own legal justification,” Cato legal scholar Jim Harper wrote about the case, “and, given the massive amounts of personal and private information on a cell phone, that search for additional evidence will typically require a warrant.”
Considering the government’s enthusiasm for harvesting and storing as much personal information on as many people as possible, it is not out of the realm of possibility that law enforcement tools will be developed to easily download the entire contents of a phone into a database, to be used at their convenience anytime in the future. In fact, such capability already is within government’s toolbox.
As Harper notes, yesterday’s cases are the Court’s first real opportunity it has taken to finally bring outdated search and seizure laws relating to cell phone access into the 21st century. Where the High Court will come down on this crucial issue is not clear. It should be hoped, however, the Court will extend Fourth Amendment protections to citizens; and at least somewhat curtail the government’s insatiable appetite to use digital technology to gather, store and manipulate private information gleaned from personal cell phones and other personal electronic devices that happen to be in a person’s possession when they have the misfortune of simply being detained for some reason.
A few weeks ago I commented about coming upon a flashing sign on side of road: Drug Check Point ahead. WTF? Not a dui traffic stop, itself I believe illegal, but now a stop to check for drugs in the vehile. To me, that is not just unreasonable, it is a cause to rebel.
No due process, no attorney, no phone call, indefinite incarceration anywhere in the world, and to my knowledge nobody has to know about it either. Why so cavalier on NDAA?
“. . .more than half of American men will be arrested at least once in their lifetime, and a 2011 study reported by TIME suggests that one out of three young adults will be arrested at least once by the time they turn 23.”
Remove urban yoots from the sample and what are the stats?
I looked and read the FY11, 12, 13 NDAA (the defense budget) and can't find anything there depriving Americans of their rights, and even those captured on the battlefield are accorded habeas corpus rights.
I contacted Cruz's office and they could not cite the specific language, nor could my rep, either.
I sincerely want to read it myself, the actual legislation, the actual words. I take no one’s word by itself on matters that involve published and accessible documents.
I know a lot of people who have decided to have a key pad with a number code that you have to put in before being able to use the phone. It helps with not pocket dialing too. I actually have not added this feature YET. I may though if this ruling really gets serious and they start taking phones and “sniffing around”.
“Government advocates argue that the same power granted to police officers to search the persons of arrested individuals to protect either the officers’ safety or to prevent evidence from being destroyed, should apply equally to cell phones.”
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Well, OK then, thou dear sworn protectors of and upholders of the U.S. Constitution, if government can project certain rights to government based on new technologies, then from the U.S. Constitution the citizens may also project certain rights based on new technologies whereby deriving from the 2nd amendment we must have the right to the police officers’ social security number and home address and the addresses and recent activities of all the politicians and government officials so just in case they are found to be exercising tyranny we can quickly and safely eliminate the threat.
Oh, and while you’re at it, if it is keeping up with modernization that is driving these expanding of access, then we citizens also will require access and unobstructed use of every new and powerful weapon that is available for stopping evil tyrants. So yes, let’s talk.
Is there an app that will wipe an iphone clean at the tap of the screen? I have nothing to hide but it is absolutely none of their business.
Would love to see the look when the phone goes dark and the LEO is asked what did you do to my phone?
What is your opinion of tracfone?
Same thing that happened to your dog over there!
Dui means Driving under influence. That could mean that you are either drunk or under drugs, which could also mean medication. I avoid driving when I have to take medicine that might make me drowsy
Cell phones may force courts to readdress searches, but it really has nothing to do with modern technology. The US Constitution is absolutely clear. One cannot legally or morally search someone without probable cause and a warrant.
Watch an episode of Cops sometime, and you’ll see the same pattern repeated over and over. A citizen is stopped for being in the wrong place, walking down the road, or doing anything else the cops thinks deserves closer attention. The cops do a pat down which they typically claim is for the citizen’s safety. They find a packet of drugs, and the person is off to jail.
Now I’m as opposed to drugs as one can possibly be. I don’t even like prescription drugs and take them only when absolutely necessary. Nevertheless, those cops search people without probable cause that an actual crime has been committed are violating the spirit and clear intent of the constitution.
I don’t really care what sort of rationalizations the black robed tyrants use to subvert the law. I can read the US Constitution myself, and it was clearly written to carefully limit the powers of government. In any situation where there is doubt, the intent was to have the benefit of doubt go to the states or the people. The federal government was clearly not meant to be this all powerful, do anything it wants behemoth with the rights of the people limited to extremely narrow protections provide by the Bill of Rights.
I don’t know what we can do about it of course, but if cell phones give us another shot at stopping the government from doing illegal searches, good! It’s absurd to think a cell phone is any different than private papers and possessions which are protected from unreasonable search, meaning the authorities need probable cause that a crime was committed and a warrant before searching a cell phone.
FReepmail me to subscribe to or unsubscribe from the SCOTUS ping list.
“Cell phones may force courts to readdress searches, but it really has nothing to do with modern technology...The federal government was clearly not meant to be this all powerful, do anything it wants behemoth with the rights of the people limited to extremely narrow protections provide by the Bill of Rights...”
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Thank you for this very well thought out reasoning.
All Freepers: Please read CitizenUSA’s whole post.
Excellent!
Put a palm of each hand at each end of your phone, and snap it in half over your knee. Instant erasure of any data. Don’t ask me how I know this.
Yes, I’ve read all that sort of stuff before but I am asking for an actual quote/link to the legislation that is causing concern and thus far no one has been able to provide. . .even Sen Ted Cruz, my Senator.
All simply make vague statements and allegations but no one can point to the legislation and jab the paper with a finger and say, “There, right there” is where it says so.
Heading to work myself but as things now stand, I still am not convinced because I have not see it in print. . have not read it anywhere in the law. It simply isn’t there. . .unless someone can refer to the actual law, section, paragraph.
FY12: http://www.treasury.gov/resource-center/sanctions/Programs/Documents/ndaa_publaw.pdf
Title X—General Provisions, Subtitle D—Counterterrorism, para 1021,(e)-page 266 of 566-specifically mentions US citizens and their exemption, as does para 1022(b)(1)-page 267 of 566-specifically states not applicable to US citizens.
FY13: http://www.gpo.gov/fdsys/pkg/BILLS-112hr4310enr/pdf/BILLS-112hr4310enr.pdf
Same Title and Subtitle, page 269 of 681. Para 1029 specifically states US citizen rights unaffected, and para 1023 (c)(2) specifically states does not apply to US citizens, as does para 1027 (1), page 283, 1028 (f)(2)(a) page 286, and most importantly, sec 1029 where it states clearly:
“Nothing in the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112–81) shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution to any person inside the United States who would be entitled to the availability of such writ or to such rights in the absence of such laws.”
I hope you can see where I find it confusing when there are ample protections of US citizens in plain language stated in the law.
The NDAA makes very clear US citizens are not subject to the abuses some allege. It can’t be any clearer than that.
Perhaps you can find something saying otherwise in the legislation, the actual law. I hope so as I have been researching this for a while and nothing proves the allegations. As much as I distrust the fed gov, I can’t find anything to support the noise and anger towards the defense budget.
Thanks.
The drug check sign ahead is to give the police probable cause to search the vehicle. There will be a checkpoint and they may ask you if you have any drugs but what they really want is for you to pull a u-turn after seeing that sign and there will be additional cops waiting to spot you doing this “because you did it after seeing the sign” so now they have probable cause to pull you over and search based on suspicion of drugs.
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