Police access to cell phones up for debate

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A national debate is stirring over whether law enforcement has the right to search through an arrested person's cell phone without a warrant.



The California Supreme Court said earlier this month that an arrested person loses his right of privacy for anything on his person when taken into custody.

That's at odds, though, with a ruling by the Ohio Supreme Court and the opinion of some legal experts, who say a phone should be confiscated, then searched with a judge's permission.

The debate hit close to home on Jan. 18, when North Augusta Public Safety officers arrested a shoplifting suspect at the Publix in the 300 block of East Martintown Road.

Officers say Neisha Willingham, 39, placed alcoholic drinks in her purse and tried to walk out with them. Willingham was arrested and charged with shoplifting and giving officers a false ID, a report says.

A search of Willingham after her arrest found two containers holding the prescription drugs Xanax and hydrocodone, a report says. Officers searched her phone and said they found text messages indicating that Willingham was selling pills illegally.

These included, "Wat color the perk U got?" and "Got both perk 10 for 7 an 512 for 5 an Xan for 4," according to a report.

North Augusta Lt. Tim Pearson didn't comment specifically on this case but said officers usually err on the side of caution and get a search warrant "when in doubt in those kind of situations."

A listed phone number for Willingham was disconnected.

The California Supreme Court based its opinion on a U.S. Supreme Court decision from the 1970s that gave officers the right to warrantless searches of a person's property. That extended to "containers," such as cigarette boxes.

Opponents of warrantless searches argues that there's no comparison between a cigarette box and the vast amount of data stored on today's smart phones.

"It's like searching through a portable file cabinet or a laptop," said Jack King, spokesman for the National Association of Criminal Defense Lawyers.

King said most states allow officers to search clothes and items if there's good knowledge or suspicion that a crime has been committed.

"But it can't be speculative," King said.

Comments (15) Add comment
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Riverman1
87601
Points
Riverman1 01/31/11 - 05:53 am
0
0
If Columbia County's legal

If Columbia County's legal advisors have anything to do with it, I doubt the police will be given the power. They won't even let Columbia County check the cell phones of officials the county pays for.

pointstoponder
340
Points
pointstoponder 01/31/11 - 08:18 am
0
0
Password protect your phone.

Password protect your phone. I don't believe you are required to give anyone the password and enven if you phone is lost instead of confiscated, it will protect your data somewhat.

WW1949
19
Points
WW1949 01/31/11 - 09:49 am
0
0
The Apple iPhone4 or the ipad

The Apple iPhone4 or the ipad can be locked, located or wiped from a computer using the Mobile Me free app that is available on line thru itunes. But why worry if you are not doing anything wrong? My phone has ICE#'s( in case of emergency) listed. Nothing illegale in mine so check it if you want. The only reason I would lock mine is for the mobile banking.

dani
12
Points
dani 01/31/11 - 09:36 am
0
0
They are welcome to check my

They are welcome to check my phone.
It can be a life saver in many instances such as abductions.
Let law enforcement have the tools they need.

milkman65
0
Points
milkman65 01/31/11 - 10:21 am
0
0
Wow!

Wow!

charlie marlow
127
Points
charlie marlow 01/31/11 - 10:30 am
0
0
Most phones do not offer an

Most phones do not offer an option to have all of the contents on the phone encrypted. Therefore, your phone is still an open book to anyone who has possession of it and a way to read the flash memory in it, so unlock codes are pretty much worthless for preventing this type of thing.

Last I heard, being compelled to hand over a password could fall under a 5th amendment argument.

See how well things go for you if you wipe your phone while it is in the hands of law enforcement. The obstruction of justice charge may be the lesser of two evils, though.

Having nothing to hide does not matter. Why should they be allowed to go on a fishing expedition? How do you know that nobody you've ever talked to or sent a text message to is under investigation for something or is related to someone who is? There are so many laws on the books that you are, likely, violating some law every day.

There is a good reason protections against unreasonable searches is in the Constitution.

raul
5348
Points
raul 01/31/11 - 10:45 am
0
0
@charlie marlow. I agree..

@charlie marlow. I agree.. having nothing to hide does not matter. We are talking about the citizens right to protection against unreasonable searches. Why just give over another constitutional right to the government. Let law enforcement go through the proper legal channels. Oh and sometimes individuals with nothing to hide that spoke to law enforcement without an attorney present found themselves in a big bucket. Why give up constitutional rights that are designed to protect you as a citizen?

CoastalDawg
125
Points
CoastalDawg 01/31/11 - 11:26 am
0
0
As we've learned through the

As we've learned through the years, giving one small bit of power to government results in the complete takeover of our lives. I would think that both the amendment concerning non-incrimination of oneself as well as unreasonable search and seizure would take all the power AWAY from the police in searching one's cell phone without a warrant and a warrant MUST include a reason for the search and what is expected to be found. Shotgun reasoning is not SUPPOSED to work. I don't have anything wrong in my phone either and don't text with it but I also would not want prying eyes of disinterested or unconnected people to read private communications between me and family or friends if it should exist on my phone. Government is rapidly taking away many freedoms GUARANTEED under the United States Constitution, the forgotten and ignored document upon which our rights and freedoms are based. It's time to turn the tide back toward being innocent until PROVEN guilty beyond a reasonable doubt and that would include not allowing unreasonable search and seizures.

charlie marlow
127
Points
charlie marlow 01/31/11 - 11:46 am
0
0
This is long, but well worth

This is long, but well worth watching. Briefly, though, the lecture is on why you never talk to the police.

stairway2nowhere
0
Points
stairway2nowhere 01/31/11 - 01:29 pm
0
0
phone is a loose term these

phone is a loose term these days when it comes to phones some of these phones are more advanced than the space shuttle....dont police have to have a search warrant for a computer or laptop...and besides even when you are pulled over for a traffic violation you can still lock your car door and not consent to a vehicle search so yes this is a valid discussion a phone is private property if you dont think so steal one and find out......

Richmnd Cty Votr
1
Points
Richmnd Cty Votr 01/31/11 - 05:28 pm
0
0
Just wonder if someone did

Just wonder if someone did something horrible to a member of your family, would you still want to respect the right of the perpetrator?

realitycheck09
307
Points
realitycheck09 01/31/11 - 10:14 pm
0
0
Richmnd - In a word, yes. At

Richmnd - In a word, yes. At some point, we have to have principles, don't we? Princples are only principles if we stand by them even when they harm us. *I* personally don't want the police to search me without a warrant, so why would it be fair for me to want them to do that to some who harms me? That would be an unfair double standard wouldn't it?

Or are you not as principled?

Taylor B
5
Points
Taylor B 01/31/11 - 10:19 pm
0
0
Principles are far too costly

Principles are far too costly for the weak and scared, reality. Those that are strong and steadfast in their stance towards true freedom will fight for the meek.

misskitty
0
Points
misskitty 01/31/11 - 10:43 pm
0
0
i have had the unfortunate

i have had the unfortunate experience of having my phone confiscated for reasons that is no ones business but let me tell you...they were recording my calls and without my consent or knowledge..tried to use these "recorded" calls as evidence against me..i saw all of the trancsripts with my motion of discovery...i never heard the actual"recorded calls" but it was thrown out of court as inadmissable...just because a conversation was made from my phone does not prove that it was myself on the one end. they tried to use all of my contacts against me and they never returned my phones. this was IN the state of Georgia...just knowing that they were spying on me makes me sick..and i think that everyone that lives in the USA should be allowed to have their privacy and not live in fear that a police officer can confiscate their personal info like that just because they say they have "suspicions"...not everyone is a criminal in the worst sense of the word but yes..ppl break laws and rules everyday in ignorance. hell the weekly jail reports already condemn ppl by posting their arrests in a "newspaper"..what happened to innocent until PROVEN guilty. how can someone take a charge against them to trial if everyone of the jurors has already seen them labled as guilty in the jailreport. yes its public knowledge but doesnt mean it has to be broadcasted. but back to the cell phones...its not right and is a perverse invasion of privacy...the police should be trained better to do the job the politcally correct way. and no...a cop cant legally search your car if you say no...and lots of dumb ppl get scared and panic cause they think it will make it worse if they dont comply. so they waive their constitutional rights by allowing the officers to search them or their cars or their phones. make them work for it..more than likely they wouldnt even be able to get a warrant....sorry for the rambling..i just hate to see how much the public servants in our country have done so much to violate the rights men and women have died to keep for us. knowledge is power...use it

usapatriot
0
Points
usapatriot 02/01/11 - 12:47 am
0
0
Folks, there is a difference

Folks, there is a difference between what is in "plain sight" and what is not.

A cell phone is a piece of evidence, but for a cop to get into it's contents needs to have a warrant issued by a judge after probable cause is presented.

If a policeman has probalble cause to believe it might have evidence on it, he/she can hold that until a warrant is issued.

This is infringing on our Constitutional right to privacy and protection from unresaonable search and seizure.

It may sound simple and non-threatening, but any erosion of our rights under the Constitution is going down a dangersous path.

Give an inch and they will take a mile. No one in this scenario would have been in danger if the police had waited on a search warrant.

Are you willing to hand over your cell phone at a traffic stop? If not, be against this now.

Once the door is open, once the precedent is set, it's almost impossible to reverse.

seenitB4
91146
Points
seenitB4 02/01/11 - 09:07 am
0
0
myfather15....I agree

myfather15....I agree 100%...The CSRA would be like the wild west w/o police protection......look at the uprising in Egypt---some are taking advantage of the political upheaval just to loot-steal...the nicer neighborhoods are having to protect themselves .....most can remember Katrina aftermath......sad but true.
The gangs would own Jones Creek & Westlake.

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