New California Law Bans Warrantless Cellphone Searches

“Whereas your car or your house can be searched on the spot if there is probable cause,” That’s not really true…  

I was pretty sure that was the case, granted the search has to be justified afterwards (basically a retroactive warrant) in order for the results to be admissible in court. I could be wrong though, care to cite a source?

Er, ‘probable cause’ is a pretty specific thing. If they see an illicit substance or item (marijuana, weapons), have reason to believe a crime is being committed (screams for help, empty beer cans in the car), or strong suggestions of illicit activity (a bong/water-pipe, mirror with white dust on it, blood stains) then they have probable cause. A lot of that is common-sense though. So yes, *IF* they have probable cause, a search on-the-spot is legal without consent. But you can request their PC justification before they do it.. sometimes it’s enough to make them reconsider a ‘fishing’ search.

It’s a VERY hard thing to argue that a cellphone looked suspicious/appeared to be engaged in illicit activities until you’ve already searched it. Therefore there is no probable cause to suspect that it IS being used in/for illicit activities, unless someone’s painted ‘drug deal burner’ on the back.

This is why it’s smart to step outside and close the door behind you if the police knock, even if you have nothing to hide; no way to even imply remote probable cause. And no, ‘you won’t mind if we have a look around then, if you have nothing to hide’ is not a valid argument. The correct answer is ‘I don’t have anything to hide, but I do not consent to any search of these premises’.

Not to sound nutty, but police are not required to tell you the truth, or correct your assumptions if you make them; know the limits of their authority. They do, and will overstep if you allow it (with consent, an overstep can become a legal action, if you grant consent).

I posted a reply to Eric, but it got tagged because of links and is sitting in moderation limbo (that’s what I get for citing sources!), but “Looked suspicious” is not grounds for a search without a warrant. It might be grounds for a warrant, and in many circumstances they can get ‘em quickly, but only if there is an actual crime that is witnessed (even open beer cans are a crime witnessed, since there are container laws, so that’s not just suspicion) is a search without a warrant allowed. The only real exception is clear and articulable safety violations (blood spatter, screams for help).  

The cell phone thing comes from this: cops are allowed to do safety searches of people. They pat ‘em down for weapons and such. Before, when they found a bulge that turned into a cellphone, they could pull it out legally and, since now it’s out, they are allowed to poke through it because it wasn’t considered protected like, say, your wallet, journal etc. That loophole is now closed, as it should be. What I was quibbling about was the comment that “Whereas your car or your house can be searched on the spot if there is probable cause, it seems that this new law means that if you want to search a cellphone, you need a warrant 100 percent of the time.” Barring certain few exceptions, you need a warrant for a house or car. The only situation I can really think of with retroactive warrants is FISA court stuff, but that’s all about wiretaps and not really relevant. 
 

Sorry about your link post getting blocked. When we don’t do that we get a lot of spam. I think you may have a point that there’d hardly be probable cause to search a cellphone (which I think is how the State Assembly backed up their decision). I was under the impression that plain sight doctrine was sort of a subset of probable cause, i.e. “I see this contraband in plain sight, therefore I have probable cause.” Also, I may have complicated matters for myself by mentioning houses since the it seems the protocol on houses and cars is pretty different. I’ll edit the wording there to make it sound a little less like cellphones are now fort knox and that cops can walk into your house whenever they feel like it. 

“To boot, it’s not just cellphones, the law extends to all “portable electronic devices…capable of creating, receiving, accessing, or storing electronic data or communications.” – Doesn’t this also take some of the teeth out of the TSA when they look at Notebooks at the airport? (I realize the TSA is Federal..) Some child porn cases have been found and prosecuted because of examination of notebooks.