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Warrantless Cellphone Search Is Legal In California
- Thread starter HardOCP News
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And the findings of that case are different than what I stated how?...
bloodhawke83
I Strike Fear into the Hearts of the Masses
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Deleted member 222586
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I agree, but I don't see how somebody should be allowed to have a big knife on a city or a huge shotgun in his trunk. If police can't check for both...why do we have police in the first place? We have to prevent...and for that you need to give them some power.
And, another thing: police here have the right to demand some ID...and if you fail to provide one (you NEED to show a national identity document, which a drivers license is not) you get arrested until somebody can provide one for you. And, again, I see no problems with it: how could you check for illegal people in the first place?
Monkey God
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Once you are under arrest, anything on your person can be examined by the police. I guess I dont see a problem with this at all.
bloodhawke83
I Strike Fear into the Hearts of the Masses
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whats being arrested like? i've never experienced it before.
I think that the issue some have with Terry v Ohio is that you do not have to be under arrest. If an Officer stops you because you look suspicious, drunk whatever, they can pat you down "for their safety" as long as they can articulate that concern. They do not need to arrest you to do so. Also any contraband found on your person during that frisk is subject to your arrest.
Just to clarify, a "frisk" is an outside the cloths "pat down", technically they can not go into your pockets unless during that frisk they feel something that may be a weapon, be it a knife, gun, roll of quarters etc.
The after an arrest “search” is another animal entirely.
Just to clarify, a "frisk" is an outside the cloths "pat down", technically they can not go into your pockets unless during that frisk they feel something that may be a weapon, be it a knife, gun, roll of quarters etc.
The after an arrest “search” is another animal entirely.
An officer doesn't have leeway to search you if they feel "threatened", and being amongst a large group of people means nothing - they would need to have a reasonable suspicion that you could be armed, and be able to articulate said reason(s). At this point a patdown is in order. There is no going through pockets and groping hidden objects, it is either an obvious weapon or it isn't. Read up on the plain feel doctrine.
My wording may not match the specific jargon that is used by police, but the general idea is the same. Officers can search people when they deem it necessary for their own safety (feel threatened), but not to gather evidence that they can use to charge someone.
I am very familiar with this as it has happened to me before. I was with a few friends and the officers had gotten a report that people were breaking into cars and stopped us to question us about it. They did one of their "stop and frisks", and I held my arms up and repeatedly stated that I wasn't carrying any weapons. I was however carry a pipe and a bag of weed, and as the officer felt it in my pocket he gave me a look, but knew that there was nothing he could do about it.
The "plain feel doctrine" (Minnesota v. Dickerson) does not only cover weapons but all contraband. The stop and frisk itself is to check for weapons (if reasonable suspicion is valid), once that frisk is initiated, if something that feels like a round tubular object is found, and the Officer can articulate his probably cause, he can reach in and pull that object out, if it is crack pipe you are going to jail, if it is a short pencil, then the search stops and the frisk resumes, for instance (more then likely they will make note, continue the frisk for weapons and then go back and address the suspicious object. It most certainly does not have to be an obvious weapon, a small rectangular object may be a folding knife or it may be a pack of gum.
You more likely got lucky as they most certainly could have arrested you for that, "it felt like a pipe" is more than enough probable cause. Unless of course this was pre 1993.
Not in the context of a random encounter with no probable cause. If they had decided to go forward and charge me I most certainly would have won in court.
Ocellaris
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The cops didn't arrest you because its a waste of fucking time to bust stoners for a tiny bag of weed when they are looking for someone breaking into cars. The people breaking into cars are a much bigger threat to the neighborhood, and if the cop pulls out the pipe they would have to deal with it.
Per your description it was not a random encounter, you were in an area that break-ins were reported. If that Officer felt that pipe in the frisk, and could articulate that he knew it was a pipe, then you could have been arrested for it, or at very least it could have been pulled from your pocket and seized. Now if he felt the pipe, then started to squeeze and manipulate that pocket to really see what it was then sure, you would have a great case.
Zoson
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Having a knife on your person is not a crime. In most states, neither is having a shotgun. Another very important part of America is the right to bear arms. It is the second amendment. It is there specifically so that we can protect ourselves.
I think the mistake you make is thinking that police are altruistic and always good. Sadly, that is not always the case(and unfortunately quite often is not). Give them an inch, they'll take a mile.
That depends on the State/city laws/ordinances pretty much all have limitations on what you can carry legally. I.E a 3 inch folding pocket knife as opposed to a 12" serated edged "Rambo" knife tucked into your pants.
The highlighted section can be applied to pretty much all citizens as well.
D
Deleted member 222586
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Wait a minute: are you telling me that a cop can't put his hands into your pockets???!?!?!?!?!? What kind of BS is that? And how will you prove that he did if you bring him to court?
Jeeeez, this seems such a huge amount of bs for me.
Having a big knife in your pocket without any good reason for it its dangerous, indeed...and I would not want people around me to bring weapons for no good reasons, just for security issues. And the same could be said about a gun: I don't know why you would need a gun in a big city...because that is why we have police for, not morons carrying guns without being sure that they know how to use them properly. (can you bear arms in all cities along the US?).
You see, there are many things about the US that I don't understand: in the first place, its kinda stupid to let everybody have a gun unless you are an uber civilized country...and checking the criminal rate of the US it totally shows its not. So, as giving everybody guns defeats the purpouse of safety they should be banned...or at least they should be more controlled.
Also, I don't understand what you say aboyt cops: yes, they are not altruistic...but they will never be useful unless you grant them some power. and I truely see no problems in them checking my pockets, because it seems stupid for me to only touch them from the outside and having to guess what there is on the inside. And the same for the ID, how bad is to show your ID in public when requested?
You're mistaking reasonable/articulable suspicion with probable cause. Suspicion allows the patdown, probably cause is necessary for the arrest. Therefore you cannot have probable cause on a "round tubular object", because that is not an arrestable offense.
Second, no, you cannot reach in and pull out a "round tubular object" and then realize it isn't a weapon and continue the patdown. The object in question must be immediately apparent to be seized in such a manner.
I was trying to keep it short. You can in fact have probably cause to pull a round tubular object out of someones pocket and have probable cause to do so. Surely you have seen a crack pipe, I hope you would be able to articulate that in your experience you have seen and felt many crack pipes which led to removing the object which ended up being a AAA maglight.
As far as being immediately apparent, that is why I said this....
zacrobmer said:
Now to get back on target, would you be able to pull someones cell phone out for a Terry stop? Not likely.
No, you cannot have probable cause on a round tubular object, because probable cause = arrest; an officer isn't going to arrest someone on the basis of detecting an unknown round tubular object on a subject during a patdown.
As for the cell phone, I can't see taking a cell phone from a pocket during a patdown.
Quite frankly, if someone has a pipe and half an ounce of weed on them or someone does 10mph over the limit on the freeway, I don't give a fuck. However, in the current law enforcement environment there are major differences. That's what I was getting at.
Also, WTF does speeding have to do with safety? I'd much rather have someone sober drive 75 in a 65 than drive 45 in a 65 stoned.
Fuck that. In a society where only the police and the criminal are armed, the citizen is victimized. The police only serve one function, they write the reports after someone is mugged, raped or killed.
One of the lines I've heard from someone with their CCW is "I carry a gun, because I can't carry a cop."
Depends on the state and city. However, if you're licensed for concealed carry, yup. Open carry is permissible without a license, but you're likely to get quite a bit of inspection from the police and had better damn well make sure that you know your rights and limitations in the jurisdiction that you're in.
So you ban them, so only criminals have them. Also, the safest parts of the country, are out in the country where you can keep your deer rifle in the window of your truck, unlike cities like Detroit or Washington DC where for a long time it was illegal for the average citizen to keep a firearm. IIRC these laws have been taken down recently on constitutional grounds.
Um, no. Probable cause is not only for arrest, it also applies to search and seizure and issue of warrants.
Yes you can have probable cause to search someones pocket based on what feels, on a pat down mind you, to be contraban. There is case law supporting that.
That officer simply had better things to do with his time than fuck with your weed and paraphernalia. He most certainly could have done something about it and it happened to be your lucky night.
Just to add a little, the Terry Stop and Frisk doesn't just deal with armed persons, or when an officer feels like a quick frisk is necessary for his or other's safety. A Terry Stop concerns an officer with reasonable suspicion that a crime is occurring, has just occurred, or is about to occur, and his ability to check into his reasonable suspicion by performing a pat down of the subjects outer clothing. If during that pat down the officer feels something that confirms his suspicion that a crime is occurring, has just occurred, or is about to occur, the officer can then seize that evidence and the person, and make an arrest. This applies to items that are immediately apparent as contraband in the pat down. Crack pipes, weed pipes, bags of dope, knives, guns, etc.
As has been said, it all depends on the circumstances though. In some instances, fuck yes I'd remove a cell phone from someone's pocket. Example: I'm dispatched to a call of a burglary in progress at a cell phone store, at 2:30 am. I stop someone leaving the area on foot within 2 minutes of the call going out, and since I ride this beat all the time I know that at this time of night in this particular part of town, not many people are out for a stroll. I pat him down, find he's got several cell phones in his pockets (which I can immediately tell are cell phones during my pat down). If he's also carrying a back pack, with the cell phones in hand now I'm in the back pack too. I'll ask for permission but at the moment I really don't need it, consent is just icing on the cake. Surprise!! More cell phones, chargers, bluetooth headsets, a bag of crack and a Jimenez Arms .380 handgun!, hot chamber with 2 in the magazine because most crackheads can't afford to buy ammo.
Now once we confirm that the cell phones and accessories in his possession belong to the store (determined by waking the store owner up and having him come to the scene to confirm that 1) The items are his, and 2) My suspect did not have permission to forcibly enter the store and take those items), my guy's going down for burglary, theft, possession of cocaine and carrying a concealed handgun. Depending on his past criminal history, the weapons charge might be a felony too.
All from a Terry Stop and Frisk.
YMMV, no two cases are ever alike.
As has been said, it all depends on the circumstances though. In some instances, fuck yes I'd remove a cell phone from someone's pocket. Example: I'm dispatched to a call of a burglary in progress at a cell phone store, at 2:30 am. I stop someone leaving the area on foot within 2 minutes of the call going out, and since I ride this beat all the time I know that at this time of night in this particular part of town, not many people are out for a stroll. I pat him down, find he's got several cell phones in his pockets (which I can immediately tell are cell phones during my pat down). If he's also carrying a back pack, with the cell phones in hand now I'm in the back pack too. I'll ask for permission but at the moment I really don't need it, consent is just icing on the cake. Surprise!! More cell phones, chargers, bluetooth headsets, a bag of crack and a Jimenez Arms .380 handgun!, hot chamber with 2 in the magazine because most crackheads can't afford to buy ammo.
Now once we confirm that the cell phones and accessories in his possession belong to the store (determined by waking the store owner up and having him come to the scene to confirm that 1) The items are his, and 2) My suspect did not have permission to forcibly enter the store and take those items), my guy's going down for burglary, theft, possession of cocaine and carrying a concealed handgun. Depending on his past criminal history, the weapons charge might be a felony too.
All from a Terry Stop and Frisk.
YMMV, no two cases are ever alike.
D
Deleted member 222586
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@Decibel: crime rate goes against your theory. Just cross-check euro crime against US crime and you will see what I mean: having guns doesn't make you more safe.
I don't know...chalk it up to youthful ignorance as to why I'd conflate the two
evanisthecoastie
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generalization, and a very faulty one at that. there are much more variables involved.
Just because your arguement is off topic I'm going to say that here in the US I'm not fearing an invasion from another country just because citizens have more weaponry than our armed forces. If germany would have tried to invade the US in WWI or WWII they would have had more of a problem with the well armed ( thank you constitution ) citizens than they would have had with the military itself. You just go ahead and enjoy your european history of invasions by other countries because your lack of firearms has served you so well to date. And while you're feeling so superior, it is our citizens right to bear arms that led to our militias doing so much damage to the invading british soldiers in the revolutionary war which btw is probably why european countries don't want citizens to be armed, just in case they decide to trample all over you again
On topic. As long as your phone is searched AFTER you are arrested then I see no problem with this as you obviously broke a serious enough law to label you as a threat to yourself or others ( which honestly is the only reason for an arrest anyways ). If however the police get a call about a 5'6" ish white male dressed in clothes similar to mine selling drugs in the neighborhood and they stop me and do their search and they find no drugs or drug paraphernalia then they absolutely should NOT be able to search my phone to make 100% sure that I am not that person as they have found nothing to otherwise flag me as that person other than the fact I'm unfortunate enough to look like that person. Om this case, outside of generic similarities between me and the actual perp there is nothing on my person to indicate that I AM the person they are looking for and therefore my rights should be protected WHETHER OR NOT there is anything illigal or not on my phone. If you are in new york and a call goes out for a description of a person that stole a candy bar from a convenience store are you okay with them searching the phone of every single person matching that persons rough description? Are you okay with them searching the phone of 1,000 people just because they happened to be wearing green on saint patricks day? In this case I do not seem to be the perp nor have the police found anything on me to label me as a threat to myself or others and as such my personal affects should be safe from search.
That is one case where the police should absolutely NOT be able to search a phone, now here is one that is:
If the police get a call that there is a a person going around town detonating explosives via phone and the person is 5'8" tall dressed like me then by all means if they have to search my phone to make sure I'm not a threat to others then I am fine with that and if the police find something illigal on my phone then it was found while the police felt that with the information they had on people looking anything like me being able to cause harm to myself or others and I just happened to be caught for something totally unrelated while I was being protected from someone else. In this case if a search of a phone without being 100% sure that you specifically are the targeted threat directly aids the safety of you or others then it should be allowed.
Stop blaming the government. it IS the peoples fault that things are becoming this way. How many times have you witnessed something you knew was wrong but just went on with your day because you convinced yourself "It isn't my problem"? Well guess what, it damn well is, even if not directly, it's called the butterfly effect.
It is without a doubt majorily the fault of the complacent citizenship here in the US that is causing things to get out of control and you can vote all you want and think your responsibility is done there but you can just shut the hell up if you think that is true and want to place the blame on the government. If you see a crime being commited and choose to look the other way or not try to interfere and protect your neighbor then you had best realize that it is your decision to convince yourself that it isn't your problem or your place to interfere that made things the way they are now. If we weren't so intent on just going about our day convincing ourselves that "it isn't our problem" then you'd have the stones to walk up to someone and confront them face to face and let them know they are wrong whether or not they wrong'd you directly.
The more complacent the citizenship here in the US becomes, the more the criminals can get away with because they know the police more and more are becoming overwhelmed because they are the only ones left to do what we should have been doing all along.
Stop blaming others because you have piss poor judgment and no backbone.
I'm a law newb but doesn't using an item in the effort to commit a crime (especially a felony) a reason to search or take that item? It makes sense to me as to why it can be searched. Not much different than if you're carrying a gun or pipe in a beating or carrying around a binder with your drugdealing schemes. That's pretty much the way I'd equate it.
If the police sit there and watch you use the phone in the process of committing a crime, then they should have reasonable suspicion that the phone was involved and hence be able to search/take it. Just like they would a car or house. Easy solution, learn better damn math skills so you don't have to set up a spreadsheet-type setup of your drugdealing on a phone
Now, if you never used it in committing a crime and were just carrying it or weren't even carrying it at the time. Slightly different story.
If the police sit there and watch you use the phone in the process of committing a crime, then they should have reasonable suspicion that the phone was involved and hence be able to search/take it. Just like they would a car or house. Easy solution, learn better damn math skills so you don't have to set up a spreadsheet-type setup of your drugdealing on a phone
Now, if you never used it in committing a crime and were just carrying it or weren't even carrying it at the time. Slightly different story.
Watch all three segments of the Napalitano speech if you don't understand. If you still don't get it after that you're part of the problem.
http://www.youtube.com/watch?v=M1P53wMbnsw
http://www.youtube.com/watch?v=bjhNZjanX9k
http://www.youtube.com/watch?v=7n2m-X7OIuY
http://www.youtube.com/watch?v=M1P53wMbnsw
http://www.youtube.com/watch?v=bjhNZjanX9k
http://www.youtube.com/watch?v=7n2m-X7OIuY
Most of the damage to the Constitution has been brought about as a direct result of the War on Drugs, the remaining balance as the result of the Patriot Act. Follow the money trail. Look at who profits from it, there's a long list on both sides of the gavel.
Oddly enough, it wasn't liberals who stripped the Constitution. It was conservatives. And not in some far off past, we have no old guard to blame. It was in the lifetime of ourselves, of our fathers.