http://arstechnica.com/tech-policy/n...california.ars
Sorry Fuzzy, that's just the way it is. And it's a little scary
Warrantless phone searches are go
http://arstechnica.com/tech-policy/n...california.ars
Sorry Fuzzy, that's just the way it is. And it's a little scary
"One day, we shall die. All the other days, we shall live."
This isn't nearly as bad as the title makes it sound. The ruling is that if you have your cellphone on you when you get arrested, the cops are allowed to look and poke at it. This is really just giving cellphones no special status, since police are generally allowed to search your person at the time of an arrest.
considering the vast amount of information stored in cellphones and portable devices, and I'm siding with the two dissenting judges.
The same type of thing is happening with DUIs and "no refusal breathalyzers". Some states are setting up judges and warrantless searches requiring blood alcohol tests, just for driving through a targeted DUI zone.
In other words, if I happen to drive through one of their target zones and fail a field sobriety test (not walking a straight line or "seeming" incoherent, both are quite possible if I've been driving more than 3 hours with chatty kids in the back) they can haul me off to jail if I "decline" a blow-test. I'm all for catching drunk drivers, but this is getting ridiculous. Driving has become grounds for warrantless searches? If I took a drive break at a rest stop and brushed my teeth and used an alcohol-based mouth wash, I'd flunk a field AND blow-test.
If my kids were in the back seat using their cell phones to talk nasty to their girlfriends or send them pics of their crotch (lol), while they haul me off to jail and take my fingerprints, is that considered prosecutorial evidence against them?
Err, how else are they supposed to test your sobriety there if you refuse a blow test? Makes an easy escape, they suspect you are drunk, but you refuse the test so you can go home.. And over here they repeat it with a more accurate blood test at the station if you fail a blow test , I think.Originally Posted by GGT
Keep on keepin' the beat alive!
Should I have to consent to a blow-test just because I drove through their target zone? Nah, I think that's bullshit. They should only conduct field sobriety tests on people suspected of drunk driving. Simply driving along the road shouldn't give them cause to treat me as a suspect. I resent getting caught up in their dragnet just to make their job "easier".
Driving cars isn't like using airports and planes, where everyone automatically consents to searches by the government. Not yet anyway.
You said so yourself, if you fail a field sobriety test, which is reason for suspicion. That said, over here they can mandate blow tests for anyone anywhere if they have a 'target zone'. Am not really opposed to that. They can also check your license, and if you have any outstanding fines/warrants without a reason.
Keep on keepin' the beat alive!
Assuming that you can search someone's briefcase the same way, then if the data that is accessed is contained in the phone itself, then I see no problem with this.
Of course, it doesn't look like the courts made a distinction, but the distinction is massive. Imagine that some of your cell phone's data is stored in your company's server, or in the phone company's server. The police-person should have no authority to access/search any of that data, because it is not actually contained within the pockets of the person being arrested... just like if a key was found in the person's pockets, it would require a warrant to search the container it opened.
In other news, apparently the 9th Circuit Court of Appeals has gone utterly mad!
Last edited by agamemnus; 01-05-2011 at 01:47 AM.
You can't refuse a blow test in Florida. Well you can, but then you lose your license. Its even printed on the front that we have to agree to any sobriety test requested by law enforcement.
Try driving for several hours, then walk a "straight line" the moment you leave the driver's seat. It's especially misleading at night, for people with presbyopia. It's not like the cops give you several moments to stretch and regain land-legs, while lights are flashing around. I'd probably act like a deer caught in the headlights. I chatter when I'm nervous or have drunk a lot of coffee to keep awake.
I brush my teeth and use Listerine on long road trips to stay alert, that right there would make me blow positive. What's next, testing my pee for opiates? I like poppy seed bagels, too. None of that makes me suspect as an impaired driver.
Casting a large net to catch all fish, then tossing certain ones out, isn't a very efficient way to keep our roads safe from impaired drivers. They could probably do a better job by mandating senior citizen driver's tests, and revoking their privileges, than treating all drivers as possible drunks.
The tests don't even get you a positive result if you just had one beer, so i think the listerine is overreacting. For the record, they never do the straight line test here, ever. The casting a big net is a deterrent against drunk drivers, just like speed cameras are against speeders.
Keep on keepin' the beat alive!
No it wouldn't.
Ok so maybe I'm overreacting in your mind. I have good cause to overreact, because I drive a LOT between states. Any given month can find me in PA, MD, NJ, NY, DE, DC, VA, OH, IN, KY, or WV. They all have different state police and different protocol.
Casting that big net to you might look very different. And remember, we don't have interstate rail like you have international rail. We have interstate roads that would be like international roads to you.
Also, speed cameras don't make the driver stop or do anything in particular, beyond paying a fine that comes in the mail days later. Cameras don't take finger prints. Speeding can't be compared to drunk driving. Most everyone speeds or exceeds speed limits. Not everyone drives drunk. People who don't drive drunk or impaired tend to resent the implication that we do, or that a dragnet is the best way to deal with those who do.
It wouldn't? Then I stand corrected. I was under the impression that breathalyzers only detect the presence of ETOH, not the type of alcohol, and not if it's metabolic or just "in the mouth".
Out of curiosity, how does traveling between states have anything to do with this? Or rail?
Keep on keepin' the beat alive!
I assumed travel within your country is different than going outside its borders. The EU doesn't share laws so much as it shares a currency, right?Out of curiosity, how does traveling between states have anything to do with this? Or rail?
On the other hand, europe has what sounds like a convenient rail system, or public transit with less need for cars and its drivers. The US is very much based on individuals driving cars. Most places don't have an alternative for impaired drivers.....bars close and tipsy people may not have access to buses, trains or even taxis. That's not an excuse or even a justification for drunk driving. Just stating how our systems are very different. Some of our towns will even ticket drunk walkers.
I admitted to being misinformed about breath "alcohol". (I've never actually had to take a breathalyzer.) But we did have some hoopla when certain public school districts were performing breathalyzers on everyone attending a football game. Cops standing by. We had some folks who tried to test them by rinsing with Listerine mouthwash right beforehand.And the net has been caught to me. I don't mind. And breath tests also do not take finger prints, by the way. It's a one minute stop. And like Wraith says, mouth wash does not set it off. I've tested a breath analyser test myself and you need to have a lot of alcohol in you to even set it off. And being pulled over in a general drunk driving test does not give me the implication that I have been drinking.
Laws regarding traffic are pretty much the same in different countries. Details may vary, but the outlines are the same. Most people don't visit bars and then travel across the border though, and the vast majority of public transportation stops around 11pm/midnight so if you go out they're no way to get home either. Ticketing people for walking drunk is pretty stupid, over here being drunk in public is an offense but you only get ticketed if you are harassing people.
And if a private football game has a strict no alcohol rule, they have every right to enforce it if they want to (though I think it's a stupid rule, but hey, it's their choice).
Keep on keepin' the beat alive!
These were public football games, between public schools. Entrants were required to blow before they could enter. There was a debate about 12 year olds, since that's the minor age group that sometimes drinks before school sports events, and their peers are 10 year olds. I think they decided anyone under age 10 had to blow.
Adults of legal drinking age couldn't enter if they'd had a few glasses of wine or several beers (however that translates to breathalyzer results as "over the limit"), even if they had a designated driver. It was totally ridiculous. The same group of people (including 10 year olds) could attend a college or NFL game without the same scrutiny. They even sell beer in those venues, and nobody is watching if 10 or 12 year olds are sipping from dad's cup.
A football game isn't public, or open to anyone though is it? They are free to set rules and enforce them however stupid the rules are (and I agree it's ridiculous).
Keep on keepin' the beat alive!
Yes, our public school games are open to the public. Anyone can attend, just buy a ticket. Not much, maybe 3 bucks for non-students, one dollar for students. You don't need ID unless you want the student discount.
But in some places you have to blow first. It's just so odd and confusing. Are they trying to crack down on minors drinking, drunk drivers, or drinking in general? Don't tell collegiate or pro arenas, they make a lot of money selling beer. They don't care who's been tailgating, entering stinking drunk, or who's staggering to their car after the game.
It actually very well could. It depends on the model of the breathalyzer, its age, how the model measures samples, as well as the calibration of the machine . GGT's vision of the danger is much closer to reality than you might think. Breathalyzers are notoriously prone to false positives, and the technology has been shown time and time again to be fundamentally flawed.
Subsequently that's also one of the reasons that they are shifting to blood testing, as GGT noted, something I find extraordinarily invasive.
21st century dragnet using 20th century technology. Everyone is presumed guilty and must prove their innocence. Go go USA #1!
<Enoch, check your PMs.>
This is kinda creeping me out. After I posted about DUIs and drunk driving, the ad banner on my page became "Sober College", for young adults ages 17-25, Not Your Ordinary Rehab.
GGT how exactly do you want the police to determine if someone is intoxicated while driving?
First of all, I don't think we have to wait until impaired people get behind the wheel in order to act. Whether they're drunk, tipsy, medicated, exhausted, young or old. That's why truck companies are required to limit consecutive driving time. No amount of coffee, caffeine pills, or amphetamines can make a tired driver a better driver.
Secondly, since prohibition has been proven ineffective, I'd make sure trains, buses or taxis are available at every venue that sells alcohol. I'd even try out "free" taxi service for bar hoppers, or an X11 number to call. Could require any/all establishments that serve booze to contribute to funding something like this. A few cents added to each drink could go a long way, and might be a better way than paying city police or state troopers to set up dragnets.
Third, (if those policies were in effect) I'd expect that police and trooper education gives them the ability to use their judgment. Maybe it's enough to pull over a swerving car, and suggest the driver sleep a few hours if they've been driving for hours. Maybe they'd decide the car going 10 miles over the speed limit, or the driver not wearing a seat belt, is less of a risk than the swerving driver.
Most cops have good judgment, if they're allowed to use it (and aren't held liable for everyone on the road). And if they're not encouraged to write silly traffic tickets or setting up dragnets because more fines insures their employment they would probably do their job just fine.
What's it say? Arstechnica doesn't want my filthy ad-blocking browser on their site.http://arstechnica.com/tech-policy/n...california.ars
Sorry Fuzzy, that's just the way it is. And it's a little scary
Last night as I lay in bed, looking up at the stars, I thought, “Where the hell is my ceiling?"
Sorry minx, I didn't intend to derail your thread from phones. Search and seizure is a hot topic, not limited to cell phones. "Warrantless" triggered a connection to our latest No Refusal breathalyzers. Their way of having a judge on-hand to approve Warrants for blood tests sticks in my craw.
I'd agree with that, and I don't like it."[S]ince the Supreme Court has ruled that police have broad authority to arrest people for even trivial infractions, such as failure to wear a seat belt, the current rule gives law enforcement officers broad discretion to transform a routine traffic stop into a highly intrusive excavation of your digital life,"
However, IMO police appear to abuse their "discretion" only because they know damn well that their jobs and paychecks are connected to citing trivial infractions. They've gone from "To Protect and Serve" (the public) to protecting their tax payer (public) funded jobs. Quite a conflict of interest.
Reasonable Cause has been turned upside down. DUI dragnets is the best example of that: pull every driver over, they're a suspect by simply driving a certain stretch of road; if they refuse to blow there's a judge waiting in the wings to sign an arrest warrant, and compel blood work.
As retarded as it sounds, a sober driver who refuses to be treated as guilty until proven innocent......can turn into any passenger in the car having their phone confiscated and searched. Before you know it, those hot sexy pics of a 14 yr old in her bra and panties are considered kiddie porn. Never mind if they were sent by consent to her 15 yr old boyfriend. Even if the bogus DUI dragnet proves driver innocence, the state can create new charges against the phone holder with "kiddie porn".
It's a crappy way to define "Reasonable Cause" for Search and Seizure. It's also crappy that judges agreed to use their powers this way. But that's just my lay opinion. Maybe Fuzzy can illuminate this for us......
This is what the link said Fuzzy:
The contents of your cell phone can reveal a lot more about you than the naked eye can: who your friends are, what you've been saying and when, which websites you've visited, and more. There has long been debate over user privacy when it comes to various data found on a cell phone, but according to the California Supreme Court, police don't need a warrant to start digging through your phone's contents.
The ruling comes as a result of the conviction of one Gregory Diaz, who was arrested for trying to sell ecstasy to a police informant in 2007 and had his phone confiscated when he arrived at the police station. The police eventually went through Diaz's text message folder and found one that read "6 4 80." Such a message means nothing to most of us, but it was apparently enough to be used as evidence against Diaz (for those curious, it means six pills will cost $80).
Diaz had argued that the warrantless search of his phone violated his Fourth Amendment rights, but the trial court said that anything found on his person at the time of arrest was "really fair game in terms of being evidence of a crime."
In its review of the case, the Supreme Court held that the Fourth Amendment didn't apply to the text messages on Diaz's cell phone at the time of arrest. The court cited a number of previous cases wherein defendants were arrested with all manner of incriminating objects—heroin tablets hidden in a cigarette case, paint chips hidden in clothing, marijuana in the trunk of a car—which did not require a warrant to obtain. The court said that the phone was "immediately associated" with Diaz's person, and therefore the warrantless search was valid.
The decision was not unanimous, though. "The potential intrusion on informational privacy involved in a police search of a person‟s mobile phone, smartphone or handheld computer is unique among searches of an arrestee's person and effects," Justices Kathryn Mickle Werdegar and Carlos Moreno wrote in dissent.
They went on to argue that the court majority's opinion would allow police "carte blanche, with no showing of exigency, to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee's person. The majority thus sanctions a highly intrusive and unjustified type of search, one meeting neither the warrant requirement nor the reasonableness requirement of the Fourth Amendment to the United States Constitution."
The courts have gone back and forth in the past on how much privacy protection should be given to data that can be found on a citizen's cell phone. A Pennsylvania District Court ruled in 2008 that law enforcement must get a warrant before acquiring historical records of a cell phone user's physical movements. The same year, the 9th Circuit Court said that the text messages of a police officer had to meet the standards of a reasonable search before law enforcement could access them. In 2010, however, the US Supreme Court said that government employers have the right to read transcripts of employees' e-mails, IMs, texts, and other communications, and that the Fourth Amendment wouldn't protect them from a government search.
South Texas College of Law professor Adam Gershowitz argued in a 2008 paper that the proliferation of iPhone-like devices means that officers fishing through your pockets for weapons can suddenly access a plethora of sensitive documents, not to mention possible passwords. "[S]ince the Supreme Court has ruled that police have broad authority to arrest people for even trivial infractions, such as failure to wear a seat belt, the current rule gives law enforcement officers broad discretion to transform a routine traffic stop into a highly intrusive excavation of your digital life," Ars observed at the time.
Gershowtiz suggested a number of possibilities for how courts could distinguish between an appropriate cell phone search and an inappropriate one, but no such rules exist yet. In the meantime, California citizens may want to be extra careful about what gets stored on their devices, lest the police find a reason to dig up your sexy texts or communications with your private "dispensary."
It takes ~2 minutes to clear out all evidence of the use of something like listerine naturally, and SOP is to provide a second test if the first test is positive a few minutes after that first test, which means that anything that could have thrown off the test will be gone. The second test is a blood test in some jurisdictions, I'm told. Fear that using mouthwash in the at some point during the day will make you show positive on these things is ludicrous.
Calibration is separate issue, and one that I think is overblown.
I think it's more an excuse of using that mouthwash to try to get out of your DUI, Wraithy.
We're stuck in a bloody snowglobe.
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