Is your smartphone and its contents your personal property? That is the question that privacy experts are weighing in on this week as police continue to push the limits of American sovereignty.
Without probable cause, police officers in America are forbidden from accessing your personal property. This is a constitutionally protected bit of American freedom, as outlined in the fourth amendment.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In short, unless the police have a reason to invade your home or open your glove box, they are not to do so without your express permission. Of course, there are plenty of examples in which this right to privacy is overlooked or overtly violated, staining the otherwise good name of these authorities.
Through past litigation, we understand the parameters of this right as it pertains to our homes, vehicles, pants pockets, and purses. But what about our smartphones? Do police have any claim to the information on these devices without a warrant or probable cause?
William Montanez is used to getting stopped by the police in Tampa, Florida, for small-time traffic and marijuana violations; it’s happened more than a dozen times. When they pulled him over last June, he didn’t try to hide his pot, telling officers, “Yeah, I smoke it, there’s a joint in the center console, you gonna arrest me for that?”
They did arrest him, not only for the marijuana but also for two small bottles they believed contained THC oil — a felony — and for having a firearm while committing that felony (they found a handgun in the glove box).
Then came the kicker.
As they confiscated his two iPhones, a text message popped up on the locked screen of one of them: “OMG, did they find it?”
The officers demanded his passcodes, warning him they’d get warrants to search the cellphones. Montanez suspected that police were trying to fish for evidence of illegal activity. He also didn’t want them seeing more personal things, including intimate pictures of his girlfriend.
So he refused, and was locked up on the drug and firearms charges.
Montanez suffered for his stubbornness, but did so in order to prove a point.
He paid a steep price, spending 44 days behind bars before the THC and gun charges were dropped, the contempt order got tossed and he pleaded guilty to a misdemeanor pot charge. And yet he regrets nothing, because he now sees his defiance as taking a stand against the abuse of his rights.
“The world should know that what they’re doing out here is crazy,” Montanez said. The police never got into his phones.
The confusion comes from the fact that police are tasked with getting a search warrant to snoop through your smartphone, but the law is unclear as to whether or not an officer can demand that you provide the passcode for your device – a silly and pedantic workaround that police are increasingly fond of.
Cellphone manufacturers have roundly rejected the idea of assisting police in cellphone “hacking”, claiming correctly that these personal effects are subject to the same legal standards as homes and glove boxes.
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