Texas Appeals Court Rules Phone Search After Arrest Violates 4th Amendment [pdf]

Re:Texas Appeals Court Rules Phone Search After Arrest Viola... by tptacek on Wednesday February 26, 2014 @04:29PM (#7308008)

Footnote 30, on Page 13, is very very important to understanding the limitations of this ruling; the ruling concerns inventory searches and not the more common searches incident to arrest. If you are arrested, in most locales in the US, it is very likely that evidence taken from your phone at the time of your arrest will stand up in court. Keep your phones secure.

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Re:Texas Appeals Court Rules Phone Search After Arrest Viola... by rosser on Wednesday February 26, 2014 @04:34PM (#7308064)

Unfortunately true. When I saw the headline, I was hopeful this was going to be about "incident" searches, and not merely "inventory" searches.

I still don't understand how the reasoning behind "incident" searches, which I'd understood to be primarily about the safety of the arresting officers, would apply to the contents of a mobile device, but that's modern criminal justice for you...

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Re:Texas Appeals Court Rules Phone Search After Arrest Viola... by tptacek on Wednesday February 26, 2014 @04:44PM (#7308156)

Incident searches are not about the safety of officers (this has come up on HN before). If you follow the cites and the doctrines, it turns out that incident searches have always been about collecting and preserving evidence as much as safety. I think incident searches get confused with Terry stops, which are solely meant to be about officer safety.

The unique issue at play in incident phone searches is the notion that a phone is a little like your house; that if you're arrested during (say) a traffic stop, the police don't have the authority to drive to your house and search it too. Similarly, if you're arrested at a traffic stop, getting access to your trunk can be legally iffy too; incident searches are restricted to your immediate vicinity.

This is something SCOTUS is going to resolve next year.

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Re:Texas Appeals Court Rules Phone Search After Arrest Viola... by Crito on Wednesday February 26, 2014 @08:16PM (#7309616)

If only there were dogs that could "smell" illegal or incriminating documents on cellphones...

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Re:Texas Appeals Court Rules Phone Search After Arrest Viola... by ensignavenger on Wednesday February 26, 2014 @11:07PM (#7310359)

Startup idea? I just need a co-founder who can make some fancy certificates, and we could be in business 'training dogs and issuing 'credentials'!

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Re:Texas Appeals Court Rules Phone Search After Arrest Viola... by chrsstrm on Wednesday February 26, 2014 @07:14PM (#7309308)

Keep your phones secure

Ok, so I get arrested and my phone is taken. Lucky for me my phone is encrypted and I was able to shut it off before it left my possession. So I've made it more difficult for the phone to be searched on the spot, but what is preventing the authorities from compelling me to decrypt the phone eventually?

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Re:Texas Appeals Court Rules Phone Search After Arrest Viola... by breakall on Wednesday February 26, 2014 @07:42PM (#7309437)

The 5th amendment?

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Re:Texas Appeals Court Rules Phone Search After Arrest Viola... by briandh on Wednesday February 26, 2014 @09:11PM (#7309853)

I'm not sure why you are being downvoted for this, unless you are being interpreted as snarky (whereas I interpret you as offering a noncommittal answer).

While it has not been settled in court yet, IIRC, the 5th amendment right against self-incrimination is the legal rationale used to argue against forced decryption [1].

[1] https://www.eff.org/deeplinks/2013/10/new-eff-amicus-brief-a...

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Re:Texas Appeals Court Rules Phone Search After Arrest Viola... by breakall on Thursday February 27, 2014 @10:31AM (#7312664)

I was tentative because the direction that two centuries of case law has taken the bill of rights often surprises me.

Thanks for the link. I googled for a bit to see if there had been a decision by the Massachusetts Supreme Judicial Court, but it doesn't appear so.

I watched a bit of the oral argument [1] from last November, and the state's argument was that since they were only asking for an order for the defendant to decrypt the data (not hand over the decryption key), the the defendant's 5th amendment rights would not be violated.

[1] http://www2.suffolk.edu/sjc/archive/2013/SJC_11358.html

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Re:Texas Appeals Court Rules Phone Search After Arrest Viola... by aptwebapps on Wednesday February 26, 2014 @09:29PM (#7309932)

The point here, if I'm not mistaken, has to do with search warrants and what evidence is admissible in court.

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Re:Texas Appeals Court Rules Phone Search After Arrest Viola... by BHSPitMonkey on Wednesday February 26, 2014 @08:04PM (#7309545)

Lots of things. Namely, they can't prove that you are even able to.

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Re:Texas Appeals Court Rules Phone Search After Arrest Viola... by Crito on Wednesday February 26, 2014 @08:19PM (#7309628)

Sure they can. When they find your fingerprints on it, your name on the bill, people willing to testify that they consider the number that the phone is associated with to be yours, etc.

It's not bulletproof like some sort of mathematical proof, but the law operates with much looser standards of proof.

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Re:Texas Appeals Court Rules Phone Search After Arrest Viola... by BHSPitMonkey on Thursday February 27, 2014 @02:42PM (#7314468)

I didn't say they can't prove the phone belongs to you. They cannot prove that you know or remember the decryption key.

Additionally, in U.S. case law there is a precedent for 5th amendment protections applying to being forced to reveal encryption keys:

https://www.eff.org/press/releases/appeals-court-upholds-con...

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Re:Texas Appeals Court Rules Phone Search After Arrest Viola... by drjesusphd on Wednesday February 26, 2014 @10:22PM (#7310151)

What if I implemented a dead-man's switch so that if I don't respond regularly, it will be impossible for me access data?

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Re:Texas Appeals Court Rules Phone Search After Arrest Viola... by dredmorbius on Thursday February 27, 2014 @09:35AM (#7312363)

Then there's the case of destruction of evidence. Depends on a number of circumstances, possibly including whether or not it takes a positive act or merely the lack of an action, on your part, to ensure the data continue to exist.

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Re:Texas Appeals Court Rules Phone Search After Arrest Viola... by beedogs on Wednesday February 26, 2014 @10:37PM (#7310234)

There are so many things that can be done digitally that bump up against the first, fourth, and fifth amendments as well as laws about the destruction of evidence. It's a mess.

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Re:Texas Appeals Court Rules Phone Search After Arrest Viola... by Crito on Thursday February 27, 2014 @01:00AM (#7310637)

Are you asking what would actually happen if you did this, or what would happen if you told the courts that you could not let them into your phone because you did this?

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Re:Texas Appeals Court Rules Phone Search After Arrest Viola... by zaroth on Wednesday February 26, 2014 @07:25PM (#7309356)

I also enjoyed the footnotes, like #19;

"Alderman v. United States, 394 U.S. 165, 176-80 (1969) (a person’s property interest in his own home was so great as to allow him to object to electronic surveillance of conversations emanating from his home, even though he himself was not a party to the conversations)."

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