Originally published at: https://boingboing.net/2014/06/25/supreme-court-rules-9-0-cops-c.html
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Long time nothing, then 500 Internal Server Error. Looks like they are slashdotted.
But at least one good news today!
Color me skeptical that this ruling will change anything.
Until I hear about an agency changing their practices, a LEO being punished for searching without a warrant, or evidence actually being excluded, I’m going to chalk this up as the first step in the Court accidentally revealing its powerlessness to affect the criminal justice system.
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Keep in mind that this ruling gives considerable power to defense lawyers. Just as the Miranda warning allows evidence gathered under false pretenses to be ruled inadmissible in court, this ruling allows any evidence gathered under an illegal phone search to be stricken from the record and to allow a mistrial to be ruled.
This is actually a very significant ruling, and one that I think will come up time and time again in court because the law enforcement officers are going to ignore it. This ensures that when the officer does illegally search a person’s phone it will come back to bite them.
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Oh these liberal activist judges - always stretching the constitution beyond it’s original intent. If the founding fathers had wanted protection for cell phones, the fourth amendment would have been written “The right of the people to be secure in their persons, houses, papers, and effects, and all media, whether now known or hereafter developed, against unreasonable searches and seizures, shall not be violated…”
Isn’t that right, Mr. Scalia?
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Dude, it was a 9-0 ruling. Even the troggs came down on the right side.
Also, I like the Chili Peppers reference. Drug Terror Sex Crime - their finest album!
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See, kids, in spite of the best efforts of the lowest among us for the last decade or so, the 4th Amendment does exist.
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I picture a judge rubber stamping a giant stack of warrants all day long, or maybe these days the judge can even approve it from his smart phone while riding in the golf cart.
Will any of the legal types here care to indulge me in a brief explanation of what this means? Is my phone any more secure now, or is it just going to delay cops a few more minutes before they can go through it all? Thanks!
Won’t the trial courts just rule that the officers acted in “good faith” and decline to exclude the evidence?
It seems like that’s what happens with most Fourth Amendment violations nowadays.
I’m not an expert, but the existence of e-warrants can likely answer this question for you. 
I truly and sincerely hope that it actually plays out this way.
Ah! So the judge can approve a warrant from their phone! lol!
So what criteria does a judge use to determine if a suspects phone can be searched? Is it as simple as the arresting officer saying something like “suspect looked at me in a menacing way”?
Evidence gets excluded all the time for constitutional and 4th amendment violations, and LE is sued all the time for constitutional violations. Agencies are going to change their practices unless they want evidence excluded; they’ll simply bag the phone and get a warrant.
Give some examples showing that this is what happens nowadays. Pure “good faith” exclusion usually apply to improperly-granted warrants, not to warrantless searches where no probable cause existed.
The standard for searches, as it says in the 4th amendment, is probable cause (that evidence relevant to the crime will be found in the thing/place to be searched).
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thanks bwv!
Since these phones record pretty much everything we do, with or without our help, seems like it was specific built for that purpose, it’s kind of like the equivalent of a personal black box.
That might make it easier for them to argue that they do have probable cause, certainly, since a phone contains so much data. I think this is an important reason to also protect your phone with a password (and not a fingerprint) with a wipe-function that will delete your phone if you fail it too many times. The reason for this his is that being forced to give you phone password is arguably testimonial evidence that would invoke the protections of the 5th amendment against self-incrimination even if the government has a warrant to search, whereas your fingerprint is not testimonial, and police can legally use it to unlock your phone without your consent (assuming they have a warrant and there’s no 4th amendment problem).
(The above is not legal advice, just my opinion.)
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The current standard decided in Herring v. United States appears to be that evidence can only be excluded if the Officer’s conduct is “deliberate and culpable.” Therefore, if the Officer says he didn’t know he couldn’t search, it won’t be excluded.
I’m not even vaguely a lawyer, but I’d be quite surprised to find any example of evidence excluded from trial in the last five years or so.
Again, read what I said about how the good faith rule applies mainly in the warrant context. Herring applies to what police do in the warrant context, not in the non-warrant context. The police believed there was a valid warrant outstanding. It turns out the warrant had expired. This says nothing about the current context where police are searching cell phones without warrants. Furthermore, the CRS report specifically notes that in Herring there is the issue of “whether a reasonably well trained officer would have known that the search was illegal.” This means that Herring really isn’t using a purely subjective good faith test, but also an objective “reasonably well trained officer” standard as well. After this decision a reasonably trained officer would know that warrantless cellphone searches are illegal.
Are you serious? It happens every day. If you think that evidence is never excluded, then why do police ever get warrants? Why do they even ask if they can search, or show any restraint from willy-nilly searching? Why would these companion cases even rise to the level of the Supreme Court if the police could just say “good faith” and be excused for all ills?
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I see a new target market for MERS…
Bravo.
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The Court emphasized that this “analysis of deliberateness and culpability” is objective: a court should ascertain not whether the police officer in question acted with good intentions, but rather “‘whether a reasonably well trained officer would have known that the search was illegal’ in light of ‘all the circumstances.’”
This seems to limit the cops’ “Duh, I din’t know I couldn’t search the premises” angle. If you didn’t know, ipso facto you were not reasonably well-trained. (Which opens the door to a civil suit as well.)
