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What To Do If Police Try To Search Your Phone Without a Warrant

Soulskill posted about 3 months ago | from the swallow-your-phone-when-they-approach-your-car dept.

Cellphones 286

blottsie writes: The Supreme Court ruled this week that it is illegal for police to search your phone without a warrant. But just because that's the new rule doesn't mean all 7.5 million law enforcement officers in the U.S. will abide by it. This guide, put together with the help of the EFF and ACLU, explains what to do if a police officer tries to search your phone without a warrant. Of course, that doesn't mean they don't have other ways of getting your data.

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286 comments

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Castle doctrine (-1)

Anonymous Coward | about 3 months ago | (#47334703)

Treat it as any other home invasion.

Re:Castle doctrine (3, Insightful)

westlake (615356) | about 3 months ago | (#47334785)

Treat it as any other home invasion.

--- and be carried out in a body bag.

Re:Castle doctrine (2)

CanHasDIY (1672858) | about 3 months ago | (#47334899)

That's what the saying "freedom isn't free" really means, you know.

Re:Castle doctrine (4, Interesting)

NotDrWho (3543773) | about 3 months ago | (#47335429)

I prefer to let some other guy die for our freedom, and then celebrate his memory.

Re:Castle doctrine (1)

DaHat (247651) | about 3 months ago | (#47334787)

If you are already under arrest or otherwise detained when they decide to illegally search your phone... I don't think the castle doctrine or even very wide interpretation of stand your ground will help you... doubly so as they would have already checked you for dangerous objects on your person.

First what what, in the butt! (-1)

Anonymous Coward | about 3 months ago | (#47334707)

I said, what what, in the butt
I said, what what, in the butt
I said, what what, in the butt
I said, what what, in the butt
You wanna do it in my butt, in my butt?
You wanna do it in my butt, in my butt?
You wanna do it in my butt, in my butt?
Let's do it in the butt, okay

I feel you watching me
Over there
Come to me
If you care
Don't sit and stare
It's just not fair
Make your move
If you dare
What what

I said, what what, in the butt
I said, what what, in the butt
I said, what what, in the butt
I said, what what, in the butt
You wanna do it in my butt, in my butt?
You wanna do it in my butt, in my butt?
You wanna do it in my butt, in my butt?
Let's do it in the butt, okay

It's okay
To have a little fight
Don't you worry
I won't bite (Not that hard)
If you want it
I'll give you power
Just be gentle
I'm delicate like a flower

I said, what what, in the butt
I said, what what, in the butt
I said, what what, in the butt
I said, what what, in the butt
You wanna do it in my butt, in my butt?
You wanna do it in my butt, in my butt?
You wanna do it in my butt, in my butt?
Let's do it in the butt, okay

I will give you what you need
All I want is your big fat seed
Give it to me, if you please
Give it to me, if you please
I will give you what you need
All I want is your big fat seed
Give it to me, if you please
Give it to me, if you please

What what, in the butt
I said, what what, in the butt
I said, what what, in the butt
I said, what what, in the butt
You wanna do it in my butt, in my butt?
You wanna do it in my butt, in my butt?
You wanna do it in my butt, in my butt?
Let's do it in the butt, okay

Well the SCOTUS did leave a hole (2)

thaylin (555395) | about 3 months ago | (#47334711)

If they feel you may be about to wipe your phone for some reason the police an search it under exigent circumstances.

Re:Well the SCOTUS did leave a hole (4, Informative)

DaHat (247651) | about 3 months ago | (#47334795)

Welcome to the fun world of anticipatory obstruction of justice.

Yes... you can be charged & convicted of obstruction by way of destroying evidence that is not yet being sought but that you think might be.

Re:Well the SCOTUS did leave a hole (2)

thaylin (555395) | about 3 months ago | (#47334933)

Then deleting of evidence of a crime would always be a crime then, because you should always expect someone to want to seek it at some point.

Re:Well the SCOTUS did leave a hole (0)

Anonymous Coward | about 3 months ago | (#47335007)

Ah, but you're not thinking quite enough like a lawyer.

Because any data has the potential of being relevant for either a prosecutor or defendant in criminal case that might happen sometime in the future, deleting anything is destruction of evidence and can be used against you in a court of law even if there is not evidence of a crime or accusation of a crime where the data would be relevant to either side's arguments.

Re:Well the SCOTUS did leave a hole (2)

sjames (1099) | about 3 months ago | (#47335101)

The problem is that if you delete something that is NOT evidence of a crime, you may still have problems. How do you prove that it was your grocery list from last week and NOT a todo list for robbing a bank?

If you insist they prove it was, suddenly the (deleted) text file becomes evidence that you deleted. It's kind of like being arrested for resting arrest in the absence of any other reason you would be arrested.

Well the SCOTUS did leave a hole (0)

Anonymous Coward | about 3 months ago | (#47335287)

The case was about those that were(already) arrested. They have your phone then, there is no way you can wipe it, because it is in their possession along with the rest of your property.

Nothing (0)

Anonymous Coward | about 3 months ago | (#47334713)

Let them take it, then sue the crap out of them. If you argue or fight against it, they'll slap you with "Resisting" something or the other, and you'll be screwed anyways.

Re:Nothing (4, Insightful)

TWX (665546) | about 3 months ago | (#47335421)

Let them take it, then sue the crap out of them. If you argue or fight against it, they'll slap you with "Resisting" something or the other, and you'll be screwed anyways.

The way this was phrased might make one disinclined to follow it, but the basic point is fairly sound. The important part is to clearly state that you do not consent to the search before they take it. It'll be up to your lawyer then, but if you say nothing then the prosecution might try to argue that you consented through your silence instead of raising an objection. If the officers choose to search despite your objection then what they find on the phone and everything found as a result of that initial finding could be thrown-out, and if an entire case is built on that initial phone evidence then the case could be dismissed entirely.

At least, that is how I understand it. I am not a lawyer though.

In all honesty, based on what lawyers have published on the Internet, many of the defendants that could have benefited by not consenting to a search in the various ways police do search have done themselves in through their own words. The best advice is to not speak to the police beyond the incidentals necessary by law (ie, states with ID laws, minimal discussion at traffic stops, etc).

Let them (0)

Anonymous Coward | about 3 months ago | (#47334729)

Tell them repeatedly and ad nauseum that you do not consent to the search; object loudly and often, and make sure your attorney hears about it. Anything they uncover will be inadmissible. If you're extremely lucky, your cell phone will contain the only incriminating evidence, and you can walk away on a technicality.

Re:Let them (2)

Xiver (13712) | about 3 months ago | (#47334783)

What if they search your phone, find what they are looking for, then pretend they didn't search your phone?

Re:Let them (1)

Joe Gillian (3683399) | about 3 months ago | (#47334837)

Wouldn't matter. The police search to produce evidence that is admissible in court. If they were to search a cell phone illegally, they could not use any of the evidence obtained from it in court, thus making the search useless in the first place.

Re:Let them (1)

mythosaz (572040) | about 3 months ago | (#47334879)

I think we all understand the fruit of the poison tree. There's hundreds of Law and Order episodes :)

Police find some poison fruit, and then manage to come at it - by sheer luck and coincidence - from another route. At least that's the argument being made.

Re:Let them (1)

Anonymous Coward | about 3 months ago | (#47334909)

Parallel Construction.

http://en.wikipedia.org/wiki/Parallel_construction

Re:Let them (0)

Anonymous Coward | about 3 months ago | (#47334921)

Unless they use it for parallel construction.

Re:Let them (0)

Anonymous Coward | about 3 months ago | (#47335107)

Unless they used the information found on your phone to pursue other leads and use evidence obtained from that part of the investigation, that they might not have known to pursue otherwise. I don't know if that's technically illegal.

Re:Let them (4, Insightful)

gstoddart (321705) | about 3 months ago | (#47335225)

You do understand that parallel construction is basically perjury, right? And that police have outright lied about the circumstances of arrest on many occasions?

So if they illegally look, and then radio to one of their buddies to call in an 'anonymous' tip, you're pretty much screwed.

Or like when the police officer tries to delete pictures off your phone, and you tell him no, and he arrests you for resisting arrest ... which is absurd since you weren't in the process of being arrested in the first place.

If you're going to purely rely on the fruit of the poison tree or the integrity of a specific police officer you've just met ... you're doing it wrong.

Not all cops are dishonest. But enough of them are that you should more or less not trust that any given one is.

Re:Let them (4, Informative)

93 Escort Wagon (326346) | about 3 months ago | (#47335291)

Wouldn't matter. The police search to produce evidence that is admissible in court. If they were to search a cell phone illegally, they could not use any of the evidence obtained from it in court, thus making the search useless in the first place.

Yes, it's not as if there's any recent evidence that US governmental entities sometimes obtain information by one method! then pretend they got it a different way [rt.com] .

Re:Let them (1)

ai4px (1244212) | about 3 months ago | (#47334917)

The poison fruit of the poison tree. Inadmissible evidence.

Re:Let them (1)

Anonymous Coward | about 3 months ago | (#47335209)

Parallel construction trumps fruit of the poison tree. Second semester, basic criminal law course.

Re:Let them (1)

Anonymous Coward | about 3 months ago | (#47335325)

Except that parallel construction to circumvent the 4th would likely result in dismissal with prejudice, and possibly prosecution of the offending party, were it discovered. Ethics portion of basic criminal law course.

lock/encrypt (0)

Anonymous Coward | about 3 months ago | (#47334741)

Then tell them they'll need a subpoena for the password.

Re:lock/encrypt (0)

Anonymous Coward | about 3 months ago | (#47335117)

This just leads to rubber-stamp warrants. Much better to leave your device open, so they're tempted to go through it, then allege exactly that in order to curry sympathy with the judge, and introduce doubt to the jury.

Unless you have nothing to hide... in which case, lock that bugger up tight and make the pigs do paperwork for nothing.

Be polite (4, Insightful)

gurps_npc (621217) | about 3 months ago | (#47334767)

Don't piss them off. Just say "I do not consent to this search. Repeatedly.

Re:Be polite (5, Insightful)

Anonymous Coward | about 3 months ago | (#47334857)

Don't piss them off.

Just say "I do not consent to this search. Repeatedly.

That does piss them off.

Re:Be polite (5, Funny)

Anonymous Coward | about 3 months ago | (#47335093)

Why should they get angry if they're doing nothing wrong?

Don't they have faith in the justice system?

Re:Be polite (5, Insightful)

bobbied (2522392) | about 3 months ago | (#47335171)

As opposed to trying to physically stop them?

The advise is sound. Do NOT consent to a search, make it clear you do not consent to as many people as possible. Even if you don't think you have anything to hide, do NOT consent to a search, ANY search... Ever... Period... You don't have to be obnoxious or disrespectful to make it clear you do not consent.

If you think they are searching your phone, say something like "Officer, I didn't give anybody permission to search my phone and I object to you looking at it." If they ask you why, you only need to repeat "Officer, with all due respect, I do not give permission for any searches." If they ask you if you have anything to hide, keep saying the same thing.

Further, I would recommend that you not answer any questions they may ask either. Once you have provided your identification, you are done answering questions with anything but "Respectfully officer, I am not required to answer your question. May I leave now?" If they say "No" or indicate that you may not leave, then you ask "Am I under arrest?" If they say you are not under arrest start the process at "May I leave now?" and keep going around the same bush until they let you leave or arrest you. Once they arrest you, SHUT UP. Say nothing but "I want my lawyer present before I will answer any questions." If they let you go, GO!

Follow this process, even if you have nothing to hide. Where it may seem to be a pain, you literally have NOTHING to gain by consenting to searches or answering questions and doing so may cost you, so it makes no sense to be cooperative. If they come to your door, don't invite them in, just step outside and close your door behind you. Remember, no answers to their questions, and no permission for any searches. Go back inside once they let you go.

Re:Be polite (0)

Anonymous Coward | about 3 months ago | (#47334893)

You do realize those two are mutually exclusive.

Re:Be polite (2)

TechyImmigrant (175943) | about 3 months ago | (#47334957)

Worse you need your phone to call your lawyer so he can hear you not consent. That'll really piss the PO off.

Re:Be polite (4, Informative)

mindcandy (1252124) | about 3 months ago | (#47335113)

Just say "I do not consent to this search
This .. and remember kids (and cops) .. that whole "digital breadcrumb" thing cuts both ways.

Even using an "imager" on a device (usually) creates a ./messages log entry which is handily timestamped with ntp sync'd clock accuracy.

The actual Guides (5, Informative)

jittles (1613415) | about 3 months ago | (#47334771)

Since the summary links you to a stupid news article and not the guides themselves, here is the ACLU Guide [aclu.org] and EFF Guide [eff.org] s here.

Re:The actual Guides (4, Informative)

mpoulton (689851) | about 3 months ago | (#47335187)

Since the summary links you to a stupid news article and not the guides themselves, here is the ACLU Guide [aclu.org] and EFF Guide [eff.org] s here.

The EFF guide you linked has not been updated yet to reflect the Riley decision. Some of those answers need to be changed because they are incorrect now. The ACLU "Know Your Rights" manual does not appear to have been updated either, but it simply doesn't address the issue of cell phone searches incident to arrest at all.

Wipe (2)

synapse7 (1075571) | about 3 months ago | (#47334777)

Have phone encrypted, and wipe phone from the bootloader?

Re:Wipe (0)

Anonymous Coward | about 3 months ago | (#47335051)

Have phone encrypted, and wipe phone from the bootloader?

I'm not sure I know exactly what you mean by "wipe phone from the bootloader", but it definitely is good idea to set your phone wipe itself if too many guesses of passphrase (not the 4-number PIN, use longer proper passphrase).

But it would be a good idea to also have a secondary fake PIN / passphrase which would bring up some lookalike home-screen, freeze it up so that user thinks phone is just slow and waits it to become active again, while the wipe would be actively erasing phone data and then lock up completely so that it would be a brick, unless reactivated by vendor cloud service or a computer that it was previously mated. Once you recover you could actually restore the backup too, so the damage is not too bad if you get your phone back or purchase a same brand phone again.

A very nice addition to that would be if it would take a photo of whoever was triggering that and upload it to cloud with location information.

ps. I've got no such personal information on my phone that it would be incriminating, but nosy people pisses me off.

The answer nobody likes... (1, Insightful)

mythosaz (572040) | about 3 months ago | (#47334805)

How about, "don't have evidence of crimes on your phone," because "you aren't a criminal." /. groupthink is, as usual, that all cops are dishonest and looking to railroad everyone, because there was a bad cop once, and since he wasn't instantly outed by co-workers, that all cops are part of his nefarious plan to subvert your rights at all junctions.

Want to have a bad time at a traffic stop? Start your traffic stop by doing the crack-the-window and repeating the "am I free to go" mantra. I don't like driving to San Diego from Phoenix and having to get inspected along I-8. It angers me. ...but the solution isn't to be a dick to the guy out there in the papers-please guard hut. Keep voting against the idiots who make these things possible.

In the meantime, just keep your phone locked.

...oh, and don't be a goddamned criminal.

Re:The answer nobody likes... (0)

Anonymous Coward | about 3 months ago | (#47334911)

Have a tire iron in your vehicle? You can be charged with possession of a burglary tool anywhere in the US and concealment of a weapon in many states. Keep your phone locked, well that is impeding an investigation. If a cop really doesn't like you they can just hand you a sealed envelope, arrest you, and later you will find out that it contained kiddie porn. So what is that about not being a 'goddamned criminal'?

Re:The answer nobody likes... (1, Insightful)

weilawei (897823) | about 3 months ago | (#47335119)

Bullshit. Locksmithing tools are state by state. In MA, I can, and do, freely carry lockpicks, no license required. Now fuck off and die, you idiot. Or at least, don't spread false BS.

Re:The answer nobody likes... (0)

Anonymous Coward | about 3 months ago | (#47335277)

Bullshit. Locksmithing tools are state by state. In MA, I can, and do, freely carry lockpicks, no license required. Now fuck off and die, you idiot. Or at least, don't spread false BS.

This law states otherwise: 266 Ma. Gen Laws Ann. 49

Penalties include up to ten years in prison, or a fine of up to $1,000 and two and a half years in jail.

What you are doing may be considered criminal. It is up to whatever officer you encounter. Really, vulgarity and false beliefs are not a defense from reality.

Re:The answer nobody likes... (5, Insightful)

Anonymous Coward | about 3 months ago | (#47334927)

How about, "don't have evidence of crimes on your phone," because "you aren't a criminal." /. groupthink is, as usual, that all cops are dishonest and looking to railroad everyone, because there was a bad cop once, and since he wasn't instantly outed by co-workers, that all cops are part of his nefarious plan to subvert your rights at all junctions.

Want to have a bad time at a traffic stop? Start your traffic stop by doing the crack-the-window and repeating the "am I free to go" mantra. I don't like driving to San Diego from Phoenix and having to get inspected along I-8. It angers me. ...but the solution isn't to be a dick to the guy out there in the papers-please guard hut. Keep voting against the idiots who make these things possible.

In the meantime, just keep your phone locked.

...oh, and don't be a goddamned criminal.

My attorney is the lead partner of probably the most succesful firm in Portland, OR and he disagrees with you. Under no circumstances should you trust a cop, EVEN if you are innocent, words directly from him to me. That means no talking, etc. That doesn't mean you have to be a complete arse, but you're being disingenious by suggesting most cops are decent folks, they are not, and even the ones that are are institutionalized into sticking up for the scumbags.

If a cop hates you he WILL find a reason to arrest you, you can't stop that, what you can do is make sure the DA's office has crap-all to work with in court and set yourself up for a wrongful arrest civil action (free college for your kids).

Re:The answer nobody likes... (2)

Dare nMc (468959) | about 3 months ago | (#47335221)

> Under no circumstances should you trust a cop, EVEN if you are innocent
That is only true for things worth hiring a lawyer over. As long as your confident your being hassled over a minor violation not worth a lawyers time, you might as well try the cheapest easiest time to present your case. Talk the cop out of the ticket, you don't have to try and talk the judge out of it, or get a lawyer involved. Anything under a few hundred dollars, no jail...
This does mean you have to recognize, and shut your mouth when being talked into something. Hard to recognize signs like, anytime a cops asks the same question twice... And even then, it can be very helpful to get on the record what other people did, to the officer right then. Don't answer questions at the scene of a accident... about what you did, they can't be used to help you in court. But it is very helpful if you can get a cop asking the right questions of other people. IE bashed a mugger, or saw a mugger bashed, you don't just claim the fifth and sit in the car while him and his buddies walk away, you tell the police I saw a knife in his pocket, and he ran after me... When the cop asks what you did, that's where you change the subject to what they did, and refuse to talk about that.

Re:The answer nobody likes... (0)

Anonymous Coward | about 3 months ago | (#47335229)

FYI (same AC as parent), I have encourtered cops that seemed decent enough and did, in my estimation, "the right thing", but banking on that is absolutely insane and flies counter to actual legal advice that I've paid a lot of money to receive from domain experts. Yeah, I didn't just get this crap from a Youtube video (though that video is correct as well), I paid for it, and it turned out to be the same advice.

Re:The answer nobody likes... (-1)

Anonymous Coward | about 3 months ago | (#47335331)

Your attorney is a dick. Unless you are doing something illegal, don't be a dick. You will have less problems with the police. Most people are decent, and cops are people just like the rest of us.

Re: The answer nobody likes... (0)

Anonymous Coward | about 3 months ago | (#47334935)

Fuck you, conformist scum. That guy in the guard hut is the one who makes this possible. You make it possible by going along with it. Your fantasy that voting has an impact shows your inexperience of the world.

Re:The answer nobody likes... (0)

Anonymous Coward | about 3 months ago | (#47334937)

Once? Once?

You strike me as one of those apocriphal African tribes, that when discovered in the 19th century only had words for numbers up to "one". You've somehow miscounted the number of misdeeds of the "American Cop" just in the last year or two.

Re:The answer nobody likes... (5, Insightful)

drinkypoo (153816) | about 3 months ago | (#47334941)

How about, "don't have evidence of crimes on your phone," because "you aren't a criminal." /. groupthink is, as usual, that all cops are dishonest and looking to railroad everyone, because there was a bad cop once, and since he wasn't instantly outed by co-workers, that all cops are part of his nefarious plan to subvert your rights at all junctions.

You aretrolling, right? It's well-known that it's harder to convict a cop of a crime than any other citizen (they are not military, they're just citizens with badges) and yet they are convicted of crimes about as often (per capita) as anyone else. Except rape. They're convicted of rape four times as often.

...oh, and don't be a goddamned criminal.

Now I know you are trolling, since the median citizen commits an average of three felonies a day.

Re:The answer nobody likes... (2)

Dylan Critchfield (2882653) | about 3 months ago | (#47335035)

Now I know you are trolling, since the median citizen commits an average of three felonies a day.

Do you have a source for this? I'd love to know what felonies I commit daily.

Re:The answer nobody likes... (0)

Anonymous Coward | about 3 months ago | (#47335203)

I guarantee that you have pictures of people in your cache for whom you have neither a model release nor the originator's 2251 paperwork. You are, therefore, if accused, guilty of possession of infringing material of a felonious nature, unless and until you present said paperwork. I have seen people convicted on exactly these grounds, and, as we both know, this applies to anyone who has ever surfed the internet, ever.

Re:The answer nobody likes... (2)

MouseTheLuckyDog (2752443) | about 3 months ago | (#47335219)

Oh uhm. Hmm ldet me see.
That's a tough one. [threefeloniesaday.com]

Re:The answer nobody likes... (0)

Anonymous Coward | about 3 months ago | (#47335305)

Just google Three felonies a day ... http://online.wsj.com/news/art... [wsj.com]

Re:The answer nobody likes... (2)

gnasher719 (869701) | about 3 months ago | (#47335149)

Now I know you are trolling, since the median citizen commits an average of three felonies a day.

I heard that before, and it seems to be a quote from some book, but I have never ever heard any evidence of that. So tell me three things that an average citizen with no intent of breaking the law might do that would be felonies.

Re:The answer nobody likes... (1)

CanHasDIY (1672858) | about 3 months ago | (#47334953)

Yea! And what's with all the goddamn Jews running around? Haven't we built the camps for them yet?

Sardonic smart-assery aside - dude, cops pull this shit all. The. Time.

If these were isolated incidents, ie not common practice, the SCOTUS wouldn't have been bothered to rule on the practice.

because there was a bad cop once, and since he wasn't instantly outed by co-workers, that all cops are part of his nefarious plan to subvert your rights at all junctions.

If you see me commit a crime, and you don't report it, guess what? They charge you with accessory to the crime. I don't think it's even slightly uncalled for to expect law enforcement personnel to abide by the same laws they expect us to. Much the opposite, equal treatment is in the Constitution.

Re:The answer nobody likes... (0)

Anonymous Coward | about 3 months ago | (#47334965)

...oh, and don't be a goddamned criminal.

Easier said than done [amazon.com] .

Re:The answer nobody likes... (1)

Anonymous Coward | about 3 months ago | (#47334995)

I know, the whole "don't be a criminal" worked well for me when I was accused of a hit and run at 17 because "the dirt was disturbed" on my car. It worked SO well that the cop handcuffed me and left me in his car in 100 degree heat while he wrote "4 counts of hit and run, but I'll drop it to one if you confess now". Oh did I mention I had been at home sick, in bed, with a fever of 103 at the time of the "hit and run" and still sick when he did all this? I believe there are probable good cops out there somewhere. All 2 of them. And they probably have desk jobs to keep them from getting to "uppity"

Re:The answer nobody likes... (2)

Sowelu (713889) | about 3 months ago | (#47335135)

Don't have evidence of crimes on my phone? How about perfect legal but very private photos of my wife that I don't want J. Random Officer looking at?

Re:The answer nobody likes... (0)

Anonymous Coward | about 3 months ago | (#47335295)

Why would you put those on your phone? Isn't that like keeping them in your wallet? Why would your wife even be okay with that?
Private means private.

Re:The answer nobody likes... (3, Insightful)

gstoddart (321705) | about 3 months ago | (#47335169)

How about, "don't have evidence of crimes on your phone," because "you aren't a criminal."

"If you have nothing to hide, you have nothing to fear."

So, are you suggesting we should all consent to illegal (and unconstitutional) searches on the assumption that since we're innocent it's OK for the police to break the law because the won't find anything??

Sorry, but no. When the police start abusing their power, the solution isn't to allow it to happen.

You may be willing to accept fascism, but we're not.

Re:The answer nobody likes... (4, Insightful)

Anubis IV (1279820) | about 3 months ago | (#47335235)

Hi there. Typical Slashdotter here. I don't think all cops are out to get me. In fact, I've been friends with a number of cops over the years (always socially, admittedly), and I'd trust any of them to act fairly and justly. Most of the cops I've interacted with on-duty have also been pretty swell folks who seemed interested in doing a good job and putting away the actual bad guys.

However, I also strongly believe that I have a right to privacy, which should be especially obvious when I'm innocent. I also believe that if we fail to exercise our rights, they will, over time, be lost. The fact that I'm not engaging in any crimes (other than the three felonies a day the average American engages in) means that they have no valid reason to go rooting around through my stuff, so I will make them work if they want to go through it. I'm polite and firm in my refusal to let them search anything, but at the same time, I hold off on the "am I free to go" stuff until they initiate the dickishness. After all, they're probably just trying to do their job, and I don't need to give them a hard time in going about the stuff that's perfectly legal and sound.

Re:The answer nobody likes... (0)

Anonymous Coward | about 3 months ago | (#47335329)

...oh, and don't be a goddamned criminal.

Because police only arrest criminals that are guilty. And would never EVER use information unrelated to a crime to convict someone.

Why do we even need a court or prision system? Just have the police execute anyone they decide they do not like, Judge Dredd style.

Re:The answer nobody likes... (4, Informative)

Splab (574204) | about 3 months ago | (#47335369)

Never ever EVER speak to American cops:

https://www.youtube.com/watch?... [youtube.com]

Re:The answer nobody likes... (4, Insightful)

bobbied (2522392) | about 3 months ago | (#47335435)

Want to have a bad time at a traffic stop? Start your traffic stop by doing the crack-the-window and repeating the "am I free to go" mantra.

Perhaps, but what do you say when they ask you where you are going? I would suggest that you NOT answer. Yes, it may raise suspicion when you say "Respectfully officer, I'm not required to answer that question." but not knowing why you have been pulled over what choice do you have? Now if it's obvious why you've been pulled over I suppose it serves no purpose to start the "may I go" bush beating, but it's also not in your interest to start confessing or feeding the officer any information he might not already have.

So at at traffic stop what do you do? Start by asking "Is there a problem officer?" or "How can I help you officer?" Put the car in park and turn it off. Get your license, registration and insurance card ready. Keep your hands in plain view (on the steering wheel) and your window open no more than half way (at night turn on the inside lights in the car). Go from there. If you don't want to go full press "Respectfully officer I don't have to answer that question." then go with non-answers like "Where are you going?" => "I'm out for a drive." Why are you a long way from home? => "Taking a vacation/Visiting some people I know" or whatever says nothing specific. "Do you know how fast you where going?" => "I was keeping pace with other traffic." Why do you think I pulled you over? => "I don't know for sure officer, why did you?" If it's obvious he's not letting you go, don't ask. But if he hands you back your paperwork, THEN you ask if you are free to go.

The whole idea here is to be non-threatening, respectful and cooperative, but not giving any definitive answers, agreeing to any claims the officer may make or consenting to any searches and then ending the interaction with the police as quickly as possible.

Re:The answer nobody likes... (0)

Anonymous Coward | about 3 months ago | (#47335449)

The Supreme Court has repeatedly said that Fourth and Fifth Amendment rights are to protect the INNOCENT, not the guilty, INCLUDING people who may be falsely accused by circumstantial evidence. This SCOTUS ruling is not to protect guilty people, but to prevent innocent people from becoming ensnared by these kinds of searches. e.g. that selfie you took in front of a convenience store that was also robbed later in the day.

Re:The answer nobody likes... (0)

Anonymous Coward | about 3 months ago | (#47335471)

I find that just being white helps you get waved thru without being stopped -- usually just a slow down and wave.

Depends on location. (1)

SuricouRaven (1897204) | about 3 months ago | (#47334835)

The US police are infamously variable. In some towns they are a model of how the police should be, respectful of the law and all citizens until proven guilty. The next town over they are little more than a legal mafia, happily resorting to intimidation and extortion to extract fines and reacting to any challenge to their authority with a campaign of persecution.

If you're in the latter, you're basically screwed. If you don't hand over the password, the officer will decide he smells a hint of pot in your car and tear the interior apart in a search in an effort to provoke you into touching him - and then it's one charge of 'resisting arrest' and a face full of pepper spray. You can fight in court, but they'll layer the charges on so thick and delay so long you'd exaust your life savings trying to secure any form of victory.

Re:Depends on location. (3, Insightful)

American Patent Guy (653432) | about 3 months ago | (#47335341)

Judge: "And why, exactly, did you search this man's phone?"

Policeman: "Well, we found this dirty phone in an extended search on the ground a few hundred feet where we arrested Mr. Jones. We searched it to learn who it belonged to."

Judge: "And where did you find the incriminating information?"

Policeman: "Well, we turned the phone over to our investigative crimes unit. They ran the 'strings' command on all the information on the phone and gave us a printout. When we looked through the printout, we found there was more information on the phone than Mr. Jones name and address. That's when we discovered that Mr. Jones was a criminal."

Judge: "Okay, it's admissible. The police didn't intend to violate anyone's privacy."

The Supreme Court has such a respectful view of local police and courts...

shove it (0)

Anonymous Coward | about 3 months ago | (#47334843)

right up his arse

Cellphone search (0)

Anonymous Coward | about 3 months ago | (#47334851)

Simply say, “You will have to rip this cell phone out of my cold, dead hands if you want to do a search.” Most will comply..

Re:Cellphone search (0)

Anonymous Coward | about 3 months ago | (#47335397)

Simply say, “You will have to rip this cell phone out of my cold, dead hands if you want to do a search.” Most will comply..

By shooting you?

crim defense attorney here (0)

Anonymous Coward | about 3 months ago | (#47334869)

What if the cops ask permission to look at your phone and like 90 percent of defendants, you say "okay" like a dumbass?

This is the most likely scenario and it's going to happen all the time.

They have to prove it. (0)

Murdoch5 (1563847) | about 3 months ago | (#47334881)

Just ask to see the law in writing, they have to show you to enforce it.

Re:They have to prove it. (1)

Anonymous Coward | about 3 months ago | (#47335269)

No they don't.

They don't have to be correct in their assertion that you are violating the law, or even have a law in mind to claim that your are violating to arrest you (the trial s there to sort out the truth), they juts need to say: "you are under arrest". However that does start a ticking clock where they have to file charges for a specific crime or let you go.

Let them (1)

neminem (561346) | about 3 months ago | (#47334905)

Sad but true, if police want to do something illegal, and you argue with them, they *will* do it anyway, and you *will* be in further trouble for attempting to resist.

On the plus side, it seems like that could actually *help* you, seeing as how it would be inadmissible in court, so if you were on trial and their evidence was found that way, great for you! (I am not a lawyer. All my knowledge of law comes from watching fictional tv and reading fictional books. Ask a real lawyer if what I said is actually true. But it certainly definitely seems like it should be? But the "don't resist arrest" part definitely, that comes from the news.)

Re:Let them (5, Informative)

ai4px (1244212) | about 3 months ago | (#47334985)

Don't resist arrest? Don't plan on it, but that won't stop the cop from "narrating" what he wants others to believe what is happening. Case in point, cop pulls over a guy and walks up to the car knowing he's being recorded by his dashcam and has on a wireless mic. You hear the cop say "stop reaching for my gun" and see him lean in the car window. It looks like the guy has tried to take the cop's gun. The truth is that there is a 2nd cop car with a dash cam recording from an angle that allows you to see the driver's hands clearly on the steering wheel, even as the cop leans in his car to unbuckle his seat belt. The cop drags him out the car and throws him on the ground. The guy tries to break his fall and the cop starts shouting "stop resisting". This really happened... google Marcus Jeter New Jersey. The cops and the DA conspired to conceal the 2nd dashcam that showed the driver's hands /not/ reaching for the cops gun.

What about a "cell phone extraction device"? (2, Interesting)

Anonymous Coward | about 3 months ago | (#47334929)

Google: police cell phone extraction device

There were a bunch of stories about gadgets that could scoop up everything from your cell in about 2 seconds.

So I wonder if those devices will still be used - at the side of the road.

Other Electronic Devices (1)

MugenEJ8 (1788490) | about 3 months ago | (#47334931)

Because I'm an enthusiast when it comes to motorcycles and cars, I tend to keep a lot of action cameras hooked up when out at meets or when going to the track. I've been pulled over before and the police officer took the camera from my helmet and started flipping through the log. Knowing he wouldn't find anything incriminating because I had not been recording, I consented to the search...

Is this scenario protected under the precedent set by the Riley v. United States ruling?

Re:Other Electronic Devices (2)

gunner_von_diamond (3461783) | about 3 months ago | (#47335011)

GoPro Camera != Cell Phone

Re:Other Electronic Devices (0)

Anonymous Coward | about 3 months ago | (#47335303)

While this is true, it doesn't set a precedent for your camera directly, but it should still set a pretty decent case.

Let your Lawyer do the talking (0)

Anonymous Coward | about 3 months ago | (#47334981)

Be polite, comply with and instructions while saying nothing and then let your Lawyer do the talking. if they are searching your phone you NEED a Lawyer so get one. Let HIM (or her!!!) do the talking and of course anything they find will now be inadmissible in court.

Lock Screen (3, Interesting)

smurd (48976) | about 3 months ago | (#47334997)

Ok, so who wants to be the first one to write an Andriod lock screen that states:
  • I do not consent to a search of this device.
  • This is illegal as per SCOTUS Riley v. United States.
  • Any search will be prosecuted criminally or civilly.

Re:Lock Screen (1)

Jason Levine (196982) | about 3 months ago | (#47335453)

Bonus points if it is voice activated.

*Normal Phone lock screen.*
Officer: "Give me that phone so I can see what's on it!"
You: "I do not consent to a search of this device."
*Non consent lock screen enabled*

Some Good, Some Bad (2)

CanHasDIY (1672858) | about 3 months ago | (#47335033)

The article has some good advice, and what I would consider some bad advice:

"Lock your phone"

- GOOD ADVICE! A simple passcode is your first line of defense against any physical intrusion, just like the lock on your front door.

"Repeat 'I do not consent to this search'"

- GOOD ADVICE! Not only does it establish that you deny consent, it shows the cop that you know (at least some of) your rights, which will get most of them to think twice before doing anything that might violate your rights (especially if you're taping the encounter).

Don't get physical/let them do as they please, then lawyer up."

I consider that bad advice, because it discourages people from exercising their right to defend themselves against unlawful arrest, a right that has been repeatedly verified and upheld in court. [constitution.org]

Of course, as with any exercising any right, you do so at your own peril.

Re:Some Good, Some Bad (2)

silas_moeckel (234313) | about 3 months ago | (#47335179)

The problem is you wont remember those rights when you wake up from the coma in jail with a TBI and associated memory/function loss. To be then railroaded for resisting arrest, assaulting a police officer and anything else they can think of.

Re:Some Good, Some Bad (2)

CanHasDIY (1672858) | about 3 months ago | (#47335419)

I figured the problem was that after they murder you for standing up for yourself, the media will do everything possible to demonize you as a radical extremist, and the cycle of fascism will renew itself.

Re:Some Good, Some Bad (1)

johnwallace123 (1173071) | about 3 months ago | (#47335457)

Don't get physical/let them do as they please, then lawyer up."

I consider that bad advice, because it discourages people from exercising their right to defend themselves against unlawful arrest, a right that has been repeatedly verified and upheld in court. [constitution.org]

Of course, as with any exercising any right, you do so at your own peril.

I think this piece of advice was more aimed about keeping you safe, not keeping you "right". If you start fighting with a cop because he's illegally searching your phone, you might end up catching a bullet. Since you were fighting with the cop, he thought his life was in danger, so the shooting could be "justified", even if the initial search was illegal.

You can be right, but if you're dead, it's really a pointless victory, isn't it? If the search is illegal, you can get it tossed in court (VERY easily), and then you can go after the police for damages. If you're dead, who cares?

Legal protection, and reality (5, Interesting)

ptudor (22537) | about 3 months ago | (#47335075)

Most people involved in a pre-textual motor vehicle stop and issued a warning for a trivial non-offense won't know to say the magic words that begin their legal defense: "Am I free to go? Why am I being detained?" and when the polite officer says, "Well, I'm sure you've got nothing to hide, let me search your vehicle, and no matter what I'll make sure you're on your way quickly," many quickly hope compliance is their best option in the short-term.

So they say, "Yeah, go ahead," instead of the alternative, "I do not consent to search and invoke all protections afforded me by the Constitution; while I am cooperating within those constraints, please advise me promptly when I am free to go."

You'll get searched anyway, whether it's your phone or your car. You might get arrested anyway. But having invoked your rights instead of freely waiving your rights gives the defendant ample opportunity to assert their innocence in court without having already accidentally proven their guilt without the benefit of counsel.

I expect most people, despite the Supreme Court ruling, will find their phones searched anyway; consider stop-and-frisk in New York City. Please set a passcode on your device, preferably alphanumeric instead of a simple PIN, and avoid interacting with law enforcement, they have better things to do than read a neckbeard hacker's text messages to his mom about picking up more Mountain Dew at the store.

(Nevermind Border Patrol checkpoints in the US or Customs/Immigration interviews...)

(IANAL.)

Pure violation, but they'll do it anyway (1)

Pro923 (1447307) | about 3 months ago | (#47335111)

I consider it a violation if I turn the corner and I find my wife snooping through my phone. What if you came back from the bathroom and your co-worker was going through your phone? This is personal property. It's absolutely insane to think that a cop could have the right to search through it without some court order of a serious magnitude. The fact is though, they'll do it anyway - they find a way. It's like searching your car. If they want to, they do it - they simply have a way around everything. They'll ask, "Do I have your consent to search your car?" If you say "No", they will say, "Ok, then we're going to have to wait a few hours for the canine cop to show up with the police dog". The thought of sitting there for hours would make me less likely to want to stand up for my rights.

Have two cameras ready to use (1)

Applehu Akbar (2968043) | about 3 months ago | (#47335141)

Openly film the cops with one camera. Have the other one set up in an inconspicuous location, where it can see them them beating the crap out of you and smashing the first camera. Do not inform anyone about the second camera until its footage is safely on YouTube.

What I say (5, Informative)

Charliemopps (1157495) | about 3 months ago | (#47335201)

This has worked very well for me in the past:

"My lawyer has advised me that rights are like muscles. If they are not exercised, they become weak. Therefor I do not and cannot consent to this search."

It conveys, very directly:
your refusal of the search request
you are a constitution, and rights advocate... meaning you will a big headache for the cop if he continues
you have a lawyer that's also into that sort of thing and would love to sue the department

You should refuse EVERY search. EVERY time. With absolutely no exceptions.
The majority of arrests start with a consensual search by police of someone that legitimately thought they had nothing to hide. Everything is illegal. If a cop searches your home and he wants you to go to jail, you're going to jail. It's as simple as that.

People get into these situations where someone backs into their car in a parking lot and the cop that arrives casually asks "Mind if I check your car for open alcohol?" and they think "LOL that's funny! Of course I don't have that." But the cop isn't just looking for alcohol is he? He starts lifting your floor mats... does he think there's a beer bottle under there? In once instance a man bought a car from the local police impound. A few days later he got pulled over, consented to a search and low and behold the car had a secret compartment for smuggling drugs. They arrested him and he spent a month in jail before they finally realized it had the drugs when it went into impound. ALWAYS refuse search requests. ALWAYS.

Re:What I say (2)

Pro923 (1447307) | about 3 months ago | (#47335239)

yeah, i agree - but as soon as you refuse they say "Ok well we're going to have to wait a couple hours for the canine to get here". What do you do then?

Re:What I say (2)

Charliemopps (1157495) | about 3 months ago | (#47335467)

"Ok, I can wait."

Just like muscles, exorcizing your rights is a pain in the ass. Apathy is the governments best weapon.
Imagine if everyone refused the search every time... ;-)
Do it for your kids man. Maybe some day we wont even get asked anymore.

Re:What I say (3, Informative)

Pro923 (1447307) | about 3 months ago | (#47335297)

Also i should point out that I completely agree with you. I was arrested when I let the police search my car and they found a sandwich bag in which I kept a 'stash' of my medication in. I have grade 4 arthritis in my ankle and it can really get bad at times. I always tried (past tense) to keep a few in my car because I never wanted to get caught in the situation where I needed them and didn't have them. These were vicoden-ibuprofen, and I had a regular prescription for them. I ended up getting charged with posession and OUI. The posession was dropped when I came back and showed the prescription, the OUI was continued without a finding - but what they don't tell you is that you still have to go through the RMV's version of an OUI, which is not pleasant at all - especially seeing as I got one that I deserved some 22 years ago when I was about 21. So this one counted as my second, and required an "interlock device" be installed in my car for 2 years. I just can not describe to you how awful this device is. Food sets it off, and every time it goes off, you have to pay 50 bucks.

IANAL... (2)

DarthVain (724186) | about 3 months ago | (#47335375)

The first thing you should do is avoid eye contact, slowly back away, making calm reassuring noises. You should also keep your arms wide; it makes you look bigger and less like prey. Finally, you should lie on the ground, and play dead. They will quickly lose interest and move on. Do not run, as it will trigger their hunter/prey instincts.

If however they start to eat you, you should start to fight back vigorously.

Or if you are really worried about it, encrypt your phone and lock it...

Stenography (1)

American Patent Guy (653432) | about 3 months ago | (#47335427)

If you're really worried about storing incriminating evidence on a device, stenography might be a good way to hide it. It's been around a long, long time and exists in many forms. Information encrypted through a key looks like random data. Information existing in the low bits of color values in a video looks like a video (with a little noise). I'd be surprised if there weren't stenographic apps already out there for smart phones (I'll let y'all look). Policeman are graduates of the police academy: very few of them have a software engineering degree!

Re:Steganography (1)

American Patent Guy (653432) | about 3 months ago | (#47335465)

That should have been "steganography". Sorry about that...

let them so it gets thrown out? (1)

mattack2 (1165421) | about 3 months ago | (#47335441)

I didn't RTFA, but wouldn't the tricky/slimy answer be "let them search it, so then all of the evidence gets thrown out"?

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