Pneuma Pelosi wrote:
> Police blotter: Cops OK to copy cell phone content
>
> By Declan McCullagh
>
http://news.com.com/Police+blotter+Cops+OK+to+copy+cell+phone+content/2100-1030_3-6177464.html
> Story last modified Thu Apr 19 07:46:12 PDT 2007
>
>
>
> Police blotter is normally a weekly News.com re****t on the
> intersection of technology and the law. This is an extra edition.
>
> What: Kansas state trooper stops truck driver, arrests him for
> alleged drug possession, and downloads contents of his cell phones.
>
> When: U.S. District Judge Sam Crow in Kansas rules on April 12.
>
> Outcome: Judge says copying of cell phones' contents was permissible.
>
> What happened, according to court documents:
> In December 2006, Kansas Highway Patrol Trooper Clint Epperly was
> staffing a drug checkpoint at a truck weighing station in Wabaunsee
> County. Rafael Mercado-Nava was driving a tractor-trailer and stopped
> at the checkpoint around midnight.
>
> When Mercado-Nava got out of his truck at the scale house, the
> trooper was suspicious, claiming that the driver was sweating, overly
> friendly, and the truck was registered in California (which Epperly
> believed to be a source of illegal drugs).
>
> Mercado-Nava's paperwork was in order. But during an inspection of
> the cab of the tractor-trailer, Epperly discovered a hidden
> compartment that allegedly contained 18 kilograms of cocaine under
> the floor.
>
> The typical sequence of events ensued: Mercado-Nava was arrested, and
> a drug dog allegedly confirmed that the substance was cocaine.
>
> What makes this case relevant to Police blotter is that Epperly and
> one of his colleagues copied the complete contents of the suspect's
> two cell phones. Mercado-Nava's attorney eventually filed a motion to
> suppress the digital contents from being used against his client in
> court, claiming they were seized illegally without a warrant.
>
> The U.S. Constitution's Fourth Amendment, of course, prohibits
> "unreasonable" searches and seizures. In general, a search without a
> warrant is viewed as unreasonable.
>
> But searches when a person is arrested are an exception to that
> general rule. In this case, the judge upheld the search as
> constitutional, saying that: "An officer's need to preserve evidence
> is an im****tant law enforcement component of the rationale for
> permitting a search of a suspect incident to a valid arrest."
>
> This raises issues--especially when hard drives that can store
> intimate life details are growing in capacity and shrinking in size.
> If someone is arrested for speeding and has a laptop next to him on
> the seat, Crow's reasoning could mean that a law enforcement officer
> is permitted to seize the laptop and copy its entire contents.
> Homeland Security already has the authority to do that at border
> crossings, according to the 9th Circuit Court of Appeals.
>
> One lesson that law-abiding citizens, who nonetheless want to protect
> their privacy, can take from this incident is to use encryption and a
> strong passphrase whenever possible. Here are some technical tips.
> Apple's OS X operating system includes a FileVault feature, and PGP
> offers whole disk encryption for Windows. In addition, there are some
> legal arguments that people accused of a crime cannot be compelled to
> divulge their passphrase.
>
> Excerpt from the district court's opinion:
> The sole evidence regarding this issue is that two cellular
> telephones were seized from defendant's person, without a warrant and
> without consent, contem****aneously with defendant's arrest, and their
> memories were downloaded at that time, before defendant was processed
> or booked. No evidence suggests that the contents of the phones were
> protected by a password or that the information retrieved by the
> troopers consisted of anything other than stored numbers of outgoing
> and incoming calls.
>
> Traditionally, there has been no reasonable expectation of privacy in
> the numbers dialed on one's phone, since by voluntarily conveying
> numerical information to the telephone company and exposing that
> information to its equipment in the ordinary course of business, one
> loses any reasonable expectation of privacy in the existence and
> identity of such calls.
>
> The same rationale has recently been applied to cell phones. Other
> courts have found that the expectation of privacy in similar cases is
> analogous to the expectation of privacy one has in the contents of a
> closed container, or in a personal telephone book containing
> directory information.
>
> A warrantless search violates the Fourth Amendment unless it falls
> within one of the enumerated exceptions to the warrant requirement.
> These exceptions include, among others, warrantless searches incident
> to a lawful arrest.
>
> Traditional search warrant exceptions apply to the search of cell
> phones. Where the accessing of memory is a valid search incident to
> arrest, the court need not decide whether exigent circumstances also
> justify the officer's retrieval of the numbers from it.
>
> Police officers are not constrained to search only for weapons or
> instruments of escape on the arrestee's person; they may also,
> without any additional justification, look for evidence of the
> arrestee's crime on his person in order to preserve it for use at
> trial. The permissible scope of a search incident to a lawful arrest
> extends to containers found on the arrestee's person.
>
> The need to preserve evidence is underscored where evidence may be
> lost due to the dynamic nature of the information stored on and
> deleted from cell phones or pagers. An officer's need to preserve
> evidence is an im****tant law enforcement component of the rationale
> for permitting a search of a suspect incident to a valid arrest.
>
> Because of the finite nature of a pager's electronic memory, incoming
> pages may destroy currently stored telephone numbers in a pager's
> memory. The contents of some pagers also can be destroyed merely by
> turning off the power or touching a button. Thus, it is imperative
> that law enforcement officers have the authority to immediately
> "search" or retrieve, incident to a valid arrest, information from a
> pager in order to prevent its destruction as evidence.
>
> The court finds that under the circumstances of this case, the
> government has met its burden to show that the troopers' search of
> the cell phones by accessing stored numbers was justified as a search
> incident to arrest.
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