tag:blogger.com,1999:blog-21633793.post4876043193889929710..comments2023-12-12T03:19:42.467-05:00Comments on CYB3RCRIM3: iPhone Search WarrantSusan Brennerhttp://www.blogger.com/profile/17575138839291052258noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-21633793.post-41603921082212707362009-07-17T16:57:25.082-04:002009-07-17T16:57:25.082-04:00The Fourth Amendment prohibits "unreasonable&...The Fourth Amendment prohibits "unreasonable" searches. Typically, searches without a search warrant are considered "unreasonable" which places the burden of proving otherwise on the state (i.e. to prove the search of the iPhone was proper under one of the search warrant exceptions such as search incident to arrest. Getting the search warrant shifts the burden back on the defendant to argue there was insufficient probable cause for the neutral magistrate to issue the search warrant.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-21633793.post-61631315252026309212009-03-30T15:23:00.000-04:002009-03-30T15:23:00.000-04:00Thanks, Susan. For some reason I had totally miss...Thanks, Susan. For some reason I had totally missed Park: I think my westlaw queries have been for "computer" and not "phone" or "cell phone." Very good to know, especially for the 2nd edition of the casebook I'm working on.<BR/><BR/>OrinOrin Kerrrhttp://volokh.comnoreply@blogger.comtag:blogger.com,1999:blog-21633793.post-58402227432560710212009-03-30T06:53:00.000-04:002009-03-30T06:53:00.000-04:00Hi, Orin,Nice to know you read the blog.One case I...Hi, Orin,<BR/><BR/>Nice to know you read the blog.<BR/><BR/>One case I was thinking of is U.S. v. Park, 2007 WL 1521573 (N.D. Cal. 2007), the reasoning of which has been cited by a number of courts. As I'm sure you know, the Park court noted, at one point, that one of the officers said<BR/><BR/>he initiated the searches because `evidence of marijuana trafficking . . . might be found in each of the cellular telephones.' . . . Officers did not search the phones out of a concern for officer safety, or to prevent the concealment or destruction of evidence. Instead, the purpose was purely investigatory. Once the officers lawfully seized defendants' cellular phones, officers could have sought a warrant to search the contents of the cellular phones.<BR/><BR/>US v. Park, supra. Other courts have cited Park for the proposition that cell phones are different from other containers, and so the application of the search incident exception to them may be more or less problematic in various ways.<BR/><BR/>My point really was the one Matt C raised: getting the warrant eliminated the need to get into those issues.Susan Brennerhttps://www.blogger.com/profile/17575138839291052258noreply@blogger.comtag:blogger.com,1999:blog-21633793.post-69434695769635224682009-03-30T01:33:00.000-04:002009-03-30T01:33:00.000-04:00I agree that the smart thing to do was to get a wa...I agree that the smart thing to do was to get a warrant here. No point in risking suppression on a pure legal issue when you've got the phone in your possession. <BR/><BR/>I'm curious, Susan, what are the cases you're thinking of that have rejected search incident to arrest doesn't apply to cellphones?<BR/><BR/>Orin KerrAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-21633793.post-15357636510619993792009-03-27T12:44:00.000-04:002009-03-27T12:44:00.000-04:00That all makes sense, especially the jailbreaking ...That all makes sense, especially the jailbreaking issue.<BR/><BR/>Thanks for the comment.Susan Brennerhttps://www.blogger.com/profile/17575138839291052258noreply@blogger.comtag:blogger.com,1999:blog-21633793.post-41211780041144291822009-03-27T09:41:00.000-04:002009-03-27T09:41:00.000-04:00I think getting a warrant for the iPhone was a pru...I think getting a warrant for the iPhone was a prudent choice. The biggest factor for it, in my opinion, is time. They could have quickly thumbed through the contents incident to the arrest, but providing a detailed report of those findings would be difficult in the limited time they have available.<BR/><BR/>In seeking a warrant, they have much more time available to relax and make sure the search is done properly and everything gets documented (especially if the arresting officer knew nothing about iPhones).<BR/><BR/>Also, one of the main iPhone forensic techniques requires jailbreaking the device. Not sure if this is the route they took, but I'd want to have a warrant covering me if I had to do this.Matt Chttps://www.blogger.com/profile/07830283432031455955noreply@blogger.com