TeeJaw Blog

How Secure Are You From Warrantless Searches of Your “Papers and Effects”

Posted in crime, Government and Politics by TeeJaw on Saturday, February 12, 2011, 12: 29 AM

The Text of the 4th Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

These days we have most of our “papers and effects” stored in a laptop computer and/or a smartphone such as an Android or an iPhone. A recent case in the California Supreme Court, People v. Diaz,  permitting a warrantless search of a smartphone incident to arrest  by police carries this exception to the warrant requirement too far.

A search incident to arrest has long been held to allow certain limited searches of the arrestee’s person and his immediate surroundings without a warrant.  The exception is based on two things:  the need to find any weapons the arrested person have within reach and the need to prevent the destruction of incriminating evidence or contraband.  Closed containers generally pose a problem for police in conducting a warrantless search because they can be secured to prevent destruction of evidence or contraband until a search warrant is obtained, thus exigent circumstances do not exist.

This issue will surely make its way to the Supreme Court where it may be resolved just when if ever police may search a smartphone without first obtaining a warrant.  In the meantime it would be wise to encrypt data as much as possible and to be sure your smartphone requires a password before access is possible.  It’s not foolproof since law enforcement has access to sophisticated code breaking software and can probably break through your password and the best encryption available if they are determined.

Why should a law-abiding citizen with nothing to hide care about this?  Because you have a reasonable expectation of privacy in the data you store in your computer or a smartphone, and it’s your right to protect it from prying eyes. But there’s another reason. Over-criminalization in American law is overtaking us. We are probably all law breakers without knowing it.  Criminal laws that don’t require criminal intent have been and are being enacted more and more.  Books have been written on the subject which give horrific details of persons engaged in business any more complex than a lawn-mowing service becoming embroiled in nightmarish legal battles over things that seemed completely innocent at the time they were done.  The “honest services” concept in Federal criminal law is a main source of trouble posing a trap for unwary citizens who never intended to break any laws. Until this phenomenon is reversed we need no further reason to want as much privacy as we can get in keeping ourselves “secure in our papers and effects.”

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