And all for something that’s perfectly legal in many states.
Well... it didn't help his persona for carrying a loaded pistol in his car. Seriously. Sure, I get that THC/Pot is legal in many states now, but considering this guy's track record for getting himself in trouble with the law he should have learned something by now.
Did you see how there was no handgun charge, so that means the firearm was legal.
The charge was having a handgun while committing a felony (possession of marijuana)
Yes... I saw that the handgun charge was dropped. So what?
Whether it's within your right or not my point is that from this article, this guy has had numerous run-ins with the police. Right or wrong, whatever he's doing he seems to continue to attract attention to himself. Charges like this are dropped for numerous reasons and I highly doubt a guy of his "caliber" (pun intended) had a permit to carry that pistol and it would make any officer nervous when they pull over a vehicle.
In Florida, like my state, it’s not required to have a license to keep a firearm in your vehicle. What makes poorly performing police nervous is inconsequential. Americans have rights even if or when government workers are nervous.
I had mad respect for him - not only did he protect himself, he also protected the innocent who do not deserve to have police pry on what they're doing.
Forgot to mention, in the police state I lived in if you took video of police they'd take your phone and delete it.
Yes... I saw that the handgun charge was dropped. So what?
Whether it's within your right or not my point is that from this article, this guy has had numerous run-ins with the police. Right or wrong, whatever he's doing he seems to continue to attract attention to himself. Charges like this are dropped for numerous reasons and I highly doubt a guy of his "caliber" (pun intended) had a permit to carry that pistol and it would make any officer nervous when they pull over a vehicle.
I'm Latino (Mexican-heritage) and trust me that there's a lot of 100% legal activity I can do that will attract the attention of police officers. Do I do it? No. Can I do it? Sure. Do I want the hassles of explaining myself to a cop, particularly a nervous one? No. You'll probably imply that restricting my legal but attention-getting behavior I'm somehow being oppressed by a police state. No... I just have better, more productive things to do with my time and police officers have enough stress to deal with that I don't want to contribute to that.
Peace.
More reason to stand up for your rights. Giving up your rights helps no civilian.
You can say I gave up my rights as much as you want. Does not make it true. I'm not sure what your ethnic status is, but I grew up being hassled by cops because of my background so I do have some insight here.
Police officers (the good ones) have so much stress to deal with each and every day and I'm sure their families worry that they may not come home at the end of that shift. They're stressed out and certainly underappreciated. I do not "give up my rights" by choosing to remain low and not engage in a behavior - however legal it is - that attracts law enforcement. It's simple respect for myself, my family, and to the officers that have to wonder if the next car they pull over might be their last.
Go ahead though... smoke a big blunt, loiter in your car while blasting music, and have a generally pissed-off motif going on. See how well that works for you in the long run. Oh yeah... citizens walking by your car will feel completely safe knowing you had a pistol in your car cuz.. hey... charges dropped right?
With all due respect...what you’re saying makes no sense. In one breath you say you won’t engage in legal activities because the racist police state will harass you, but in the next you say you’re aren’t giving up your freedom - despite not feeling comfortable utilizing said freedom. That’s the definition of loss of freedom. It’s like a woman saying she’ll wear the burka her government forces her to wear, but doesn’t feel she’s lost her freedom not to comply. Of course she has. And so have you. This is unfortunate for everyone.
There are many people here posting about 'police states.' There is a big difference between a police state, in which the police have virtually unchecked power to do as they please, and the United States where the police power is very clearly regulated and limited by the courts. The simple fact that the police make or attempt a search that you might disagree with does not make it a police state. I certainly hope no one would argue that the police should never have the right/authority to search personal property - the constitution is clear on this as well. After that it becomes a question of how much authority they should have and how it is regulated. This question comes up on a daily basis in the courts across the country and cases routinely get thrown out. I don't think we should give up our right to privacy, but I do feel strongly that the police should have appropriately regulated authority to perform searches when necessary. I don't have a good answer for how that should be managed in the digital age.
And that's the crux. YOU self-admittedly do not have an answer but instead are merely putting forth a defense of the status quo. And all the while police can and do make searches at their good pleasure. People get pulled over or searched all the time even if there is no good reason. Whether that defines the US as "a police state" in the strictest possible sense is not so relevant. What is relevant is how easy it is for you to be searched and then charged if you in any way give even the slightest hint you will not capitulate to their every demand. That may not be a "police state" but it is borderline "oppression." How is a demand to "Capitulate for the greater good!" in any way synonymous with "The Land of the Free"? And I say this as someone who does not use drugs and who does not condone their use and who even tends to vote Republican. Moreover, one of my brothers is a police officer and a very good man at that. And I am well aware that the near endless number of laws and law enforcers we have is a direct result of the actions of bad people. But at the end of the day FREEDOM isn't about what bad people do. If we make a new law for every little bad thing somebody else does, the majority suffers a tremendous loss in terms of general FREEDOM. Policing the public is no exception. Individual liberty should be prioritized by everyone in the US who calls themselves American. Freedom is what defines genuine Americans. Individual Liberty should always be put first, even at the risk of personal injury by having fewer laws and fewer police on the road. We need both laws and law men, but just how many is the crux. I contend that fewer is better than more, for all men, even good men, are flawed and make bad choices. And the more power you give to someone (i.e., the police), the greater the offenses will be (keeping in mind they are always armed, have backup, and can inflict much harm on someone they are targeting). The more laws and law enforcers we have, the more of a "police state" (or oppression of the populace) will be the norm.
As much as I respect law enforcers, I do not worship them like some do. The term "worship" comes from the old English "worth ship" was implies how much worth we give to something. My willingness to respect them doesn't extend to defending them in all situations. Are they under attack daily? Probably. Do some die in the line of duty? Yes, all the time. But we must admit one important fact. THEY CHOOSE THAT JOB! They aren't drafted into serving. And just because they serve, doesn't mean we must bow our heads in subservience to them. They are public "servants" after all, doing that job out of their own free will, and they are monetarily compensated for it. And if they come to dislike that compensation (which is the public's way of thanking them for the work they do), they can quit and find a less dangerous form of employment.
Lastly, I must emphasize that it's stupid to do drugs, even "soft drugs" like Marijuana. Even smoking tobacco or drinking alcohol is silly. Heck, I don't even drink coffee, and no I'm not Mormon either. Imagine if you legally smoke some drug in the US but then take an overseas trip. Your habit could land you in jail or worse, which means it's best to avoid doing that particular drug at all. Better safe than sorry. But despite being that strict on drug use, I stand for individual liberty.
You know you are a true proponent of liberty when you afford your neighbor more liberty than you would afford your own self. I would never, ever do drugs. Yet I hesitate to ban tobacco (even thought I HATE it and have an allergy to it) or alcohol (we tried that and failed) or even marijuana. Patrick Henry was willing to choose death over the loss of liberty, whereas Americans today sadly are welling to sell their own soul for the mere "feeling" of added security. It ought not to be so. May we be respectful of the law and law enforcers while at the same time not hesitate to alter the status quo by eliminating unnecessary and harmful laws and reducing powers granted to law enforcers (e.g., body cameras are a part of that, helping keep their power in check). Because absolute power corrupts absolutely, we must limit power granted to man, even those who enforce laws to regulate man. The more checks and balances we have and the fewer crazy cases of "your under arrest for resisting arrest" the less of a police state it will be and the less oppressed the public will feel.
There is much more to be said on this subject, but here are some links for further study:
There is the argument in some cases that a warrant could be denied due to the fourth and fifth amendments, such as the case in Idaho in May. A warrant to search a device of unknown ownership was considered as under the fourth amendment it would be lawful if it was "reasonable," namely if it didn't violate the person's constitutional rights, but the fifth protecting against self-incrimination meant the device could not be unlocked as it would identify the person as its owner, which also brought into play the fourth.
The alternative is for the police to employ hacking techniques, like the "GrayKey" tool from 2018 that some regional police forces used to access the contents of smartphones, but at a cost of thousands of dollars to license the technology.
Due to the expertise required, the unreliability of the techniques, and the cost, there is an increased pressure for law enforcement to get the suspect to unlock the smartphone, but the trouble with acquiring access due to current law is said to give more of an edge to criminals.
"It would have an extreme chilling effect on our ability to thoroughly investigate and bring many, many cases, including violent offenses," said Hillar Moore, district attorney for East Baton Rouge, Louisiana. "It would basically shut the door."
As pointed out above, this isn't really a dilemma. The very reason that certain rights were added to the Constitution was to restrict the ability of the government, including law enforcement, from violating individual privacy. If we throw out the 4th, 5th & 14th Amendments, among other constitutional protections, just to make the job easier for law enforcement, it would have an extreme chilling effect on Americans' ability to live lives free of the fear of unwarranted government intrusion as the founders intended. The use of "hacking techniques" without a warrant is also a clear violation of the 4th Amendment, otherwise it's no different that obtaining evidence through the use of burglar's tools to illegally enter a home.
However, forcing an individual to unlock their phone is clearly a violation of 5th Amendment protections against self incrimination. I would even go so far as to argue that the use of "hacking tools" to unlock or decrypt phones, and other devices or documents, is inherently a 5th Amendment violation as there is a reasonable expectation that locked and encrypted devices and documents are essentially private in the same way that one's thoughts are. If that makes life difficult for law enforcement, so be it. The founders did not, nor did subsequent generations of lawmakers, include a clause or amendment that waives individual rights to privacy or self incrimination in cases where that makes life difficult for law enforcement.
> I would even go so far as to argue that the use of "hacking tools" to unlock or decrypt phones, and other devices or documents, is inherently a 5th Amendment violation as there is a reasonable expectation that locked and encrypted devices and documents are essentially private in the same way that one's thoughts are.<
It's the 4th Amendment that protects against unreasonable search and seizure, without a warrant or reasonable cause. However, the expectation of privacy is moot once law enforcement gets a search warrant or have reasonable cause. If law enforcement obtained a search warrant to search your home and find a safe, they can use what ever means they have available to open the safe. Be it hiring a locksmith or a person with a blow torch. There is no expectation of privacy for the contents of that safe, once a warrant was issue to search your home and there's reasonable cause that what they are searching for, might be in the safe.
However, what the search warrant won't or shouldn't allow for, is for law enforcement to force you to reveal the combination to the safe or otherwise face jail time. Or even reveal to law enforcement that there's a hidden safe in your home, that you know they will not find. That's what protected under the 5th Amendment under self incrimination, not the contents in your home, your safe or in this case, your smartphone.
If law enforcement got a search warrant, manage to find your hidden safe, open your the safe or hack into your smartphone, without you being forced to reveal where your safe was hidden, the combination of your safe or pass code to your smartphone, then any evidence in your safe or smartphone can be used against you as you were not denied your right under the 5th Amendment, of not being compelled to be a witness against yourself. And your private contents would no longer be protected under the 4th Amendment, as a search warrant was issued before the search proceeded.
Providing the search warrant spells out what they are searching for. If the warrant states that they are searching for a stolen assault rifle, then they have no reason to force you to open your breadbox size safe or unlock your phone, as there's no reason to believe that an assault rifle was hidden in your safe or smartphone. In which case, there is a reasonable expectation of privacy for the contents of your safe or smartphone.
There are many people here posting about 'police states.' There is a big difference between a police state, in which the police have virtually unchecked power to do as they please, and the United States where the police power is very clearly regulated and limited by the courts. The simple fact that the police make or attempt a search that you might disagree with does not make it a police state. I certainly hope no one would argue that the police should never have the right/authority to search personal property - the constitution is clear on this as well. After that it becomes a question of how much authority they should have and how it is regulated. This question comes up on a daily basis in the courts across the country and cases routinely get thrown out. I don't think we should give up our right to privacy, but I do feel strongly that the police should have appropriately regulated authority to perform searches when necessary. I don't have a good answer for how that should be managed in the digital age.
And that's the crux. YOU self-admittedly do not have an answer but instead are merely putting forth a defense of the status quo. And all the while police can and do make searches at their good pleasure. People get pulled over or searched all the time even if there is no good reason. Whether that defines the US as "a police state" in the strictest possible sense is not so relevant. What is relevant is how easy it is for you to be searched and then charged if you in any way give even the slightest hint you will not capitulate to their every demand. That may not be a "police state" but it is borderline "oppression." How is a demand to "Capitulate for the greater good!" in any way synonymous with "The Land of the Free"? And I say this as someone who does not use drugs and who does not condone their use and who even tends to vote Republican. Moreover, one of my brothers is a police officer and a very good man at that. And I am well aware that the near endless number of laws and law enforcers we have is a direct result of the actions of bad people. But at the end of the day FREEDOM isn't about what bad people do. If we make a new law for every little bad thing somebody else does, the majority suffers a tremendous loss in terms of general FREEDOM. Policing the public is no exception. Individual liberty should be prioritized by everyone in the US who calls themselves American. Freedom is what defines genuine Americans. Individual Liberty should always be put first, even at the risk of personal injury by having fewer laws and fewer police on the road. We need both laws and law men, but just how many is the crux. I contend that fewer is better than more, for all men, even good men, are flawed and make bad choices. And the more power you give to someone (i.e., the police), the greater the offenses will be (keeping in mind they are always armed, have backup, and can inflict much harm on someone they are targeting). The more laws and law enforcers we have, the more of a "police state" (or oppression of the populace) will be the norm.
As much as I respect law enforcers, I do not worship them like some do. The term "worship" comes from the old English "worth ship" was implies how much worth we give to something. My willingness to respect them doesn't extend to defending them in all situations. Are they under attack daily? Probably. Do some die in the line of duty? Yes, all the time. But we must admit one important fact. THEY CHOOSE THAT JOB! They aren't drafted into serving. And just because they serve, doesn't mean we must bow our heads in subservience to them. They are public "servants" after all, doing that job out of their own free will, and they are monetarily compensated for it. And if they come to dislike that compensation (which is the public's way of thanking them for the work they do), they can quit and find a less dangerous form of employment.
Lastly, I must emphasize that it's stupid to do drugs, even "soft drugs" like Marijuana. Even smoking tobacco or drinking alcohol is silly. Heck, I don't even drink coffee, and no I'm not Mormon either. Imagine if you legally smoke some drug in the US but then take an overseas trip. Your habit could land you in jail or worse, which means it's best to avoid doing that particular drug at all. Better safe than sorry. But despite being that strict on drug use, I stand for individual liberty.
You know you are a true proponent of liberty when you afford your neighbor more liberty than you would afford your own self. I would never, ever do drugs. Yet I hesitate to ban tobacco (even thought I HATE it and have an allergy to it) or alcohol (we tried that and failed) or even marijuana. Patrick Henry was willing to choose death over the loss of liberty, whereas Americans today sadly are welling to sell their own soul for the mere "feeling" of added security. It ought not to be so. May we be respectful of the law and law enforcers while at the same time not hesitate to alter the status quo by eliminating unnecessary and harmful laws and reducing powers granted to law enforcers (e.g., body cameras are a part of that, helping keep their power in check). Because absolute power corrupts absolutely, we must limit power granted to man, even those who enforce laws to regulate man. The more checks and balances we have and the fewer crazy cases of "your under arrest for resisting arrest" the less of a police state it will be and the less oppressed the public will feel.
There is much more to be said on this subject, but here are some links for further study:
Thanks to the both of you for well articulated and respectful comments. I love this sort of back and forth.
IDW, I agree on a lot of what you've mentioned but I would have to disagree with the first part of your rebuttal in your first paragraph. Police have to have a pretty good reason in which to search a person's property. I thinkg most understand perfectly why that is necessary and use good judgement. Especially today with everyone having cell phone cameras and businesses having security cameras. Yes, there are always bad apples but I'm talking about the lions share of law enforcers. Look, I get it. If I know full well that I am not breaking the law and I got caught up in an event I'm not going to like a police officer shaking me down. Say, for instance, I'm involved in an armed robbery. Police show up and there are 6 people in the convenience store. They do not know who is who and who did what. That said all 6 people, in a law enforcer's eyes, will be "involved". That means I may be searched because they don't know if I am a participant in the crime or not. I am innocent of this crime but in order for the police to figure it out I will comply with what may be considered to some an unjust search. I am probably oversimplifying this a tad but humor me. Now, if during that search they find that I have a crack pipe in my back pocket. Does the law enforcement officer have the right to continue the search and make an arrest? I'm not a legal tactician by any means so I can't answer that. I would guess, yes? Would that hold up in a court room? I haven't the foggiest. Maybe you all can help me with that.
As for more or less law enforcers on the streets I would have to agree that there has to be a good balance. I don't want police officers on every corner of my street. However, where I live there has been a rash of crime in a particular area of town. 50 state police officers were instructed to add to the current law enforcement levels there to help stomp out crime. It worked. Crime went down dramatically. Arrests went up. Criminals now know that there is more law enforcement there so they stay away and crime has been mitigated. Visitors felt more at ease coming into this particular area because they knew that law enforcement was there. Businesses were also happy to see the level of law enforcement officers go up. So, having LESS law enforcement was not a good thing. In fact it was the opposite. MORE law enforcers were required. Again, a good balance (crime vs law enforcement).
Again, thanks to the both of you for well thought out and constructive arguments. I wish most would approach a respectful debate in this fashion today so that both sides can be heard.
I read almost all of this thread and I didn't see anyone mention, not even in the article itself, if the suspect contacted the ACLU for legal support. I think I read somewhere that they would provide free legal support for anyone who was charged by the police or by a judge for not revealing a password.
There was some thoughtful and intelligent discussion on this topic (and some equally thoughtless) and I'm glad today that this forum exists. I'm not trying to promote the ACLU, which I don't always agree with, but in this case it could have helped. Even though the case was dismissed, depending on how it was dismissed, it might still be on the suspect's record, so the ACLU may still be able to help.
And all for something that’s perfectly legal in many states.
Well... it didn't help his persona for carrying a loaded pistol in his car. Seriously. Sure, I get that THC/Pot is legal in many states now, but considering this guy's track record for getting himself in trouble with the law he should have learned something by now.
I'm not a gun fan, never had one, never plan on getting one however some people feel they want to own a gun and as long as it is legal for them to have one in their car that should not affect their "persona".
And all for something that’s perfectly legal in many states.
Well... it didn't help his persona for carrying a loaded pistol in his car. Seriously. Sure, I get that THC/Pot is legal in many states now, but considering this guy's track record for getting himself in trouble with the law he should have learned something by now.
I'm not a gun fan, never had one, never plan on getting one however some people feel they want to own a gun and as long as it is legal for them to have one in their car that should not affect their "persona".
The word "persona" can be defined as "public face perceived by others". But if the gun is in a glove box then by definition it wouldn't affect his "persona". In the same way what I have inside my house doesn't affect my "persona". And like you, I've never had a gun either. In fact, I'm not even one of the 55% of AI readers who are American.
Apple needs to add a wipe code for iPhones. If someone demands you unlock your phone, you enter the wipe code and the phone instantly wipes all storage from your main account and goes into an alternate account mode which only contains safe information and apps (you decide what). From then on the wipe code continues to unlock this safe account. No one, not even Apple, will know if you entered the real code or the wipe code.
There is the argument in some cases that a warrant could be denied due to the fourth and fifth amendments, such as the case in Idaho in May. A warrant to search a device of unknown ownership was considered as under the fourth amendment it would be lawful if it was "reasonable," namely if it didn't violate the person's constitutional rights, but the fifth protecting against self-incrimination meant the device could not be unlocked as it would identify the person as its owner, which also brought into play the fourth.
The alternative is for the police to employ hacking techniques, like the "GrayKey" tool from 2018 that some regional police forces used to access the contents of smartphones, but at a cost of thousands of dollars to license the technology.
Due to the expertise required, the unreliability of the techniques, and the cost, there is an increased pressure for law enforcement to get the suspect to unlock the smartphone, but the trouble with acquiring access due to current law is said to give more of an edge to criminals.
"It would have an extreme chilling effect on our ability to thoroughly investigate and bring many, many cases, including violent offenses," said Hillar Moore, district attorney for East Baton Rouge, Louisiana. "It would basically shut the door."
As pointed out above, this isn't really a dilemma. The very reason that certain rights were added to the Constitution was to restrict the ability of the government, including law enforcement, from violating individual privacy. If we throw out the 4th, 5th & 14th Amendments, among other constitutional protections, just to make the job easier for law enforcement, it would have an extreme chilling effect on Americans' ability to live lives free of the fear of unwarranted government intrusion as the founders intended. The use of "hacking techniques" without a warrant is also a clear violation of the 4th Amendment, otherwise it's no different that obtaining evidence through the use of burglar's tools to illegally enter a home.
However, forcing an individual to unlock their phone is clearly a violation of 5th Amendment protections against self incrimination. I would even go so far as to argue that the use of "hacking tools" to unlock or decrypt phones, and other devices or documents, is inherently a 5th Amendment violation as there is a reasonable expectation that locked and encrypted devices and documents are essentially private in the same way that one's thoughts are. If that makes life difficult for law enforcement, so be it. The founders did not, nor did subsequent generations of lawmakers, include a clause or amendment that waives individual rights to privacy or self incrimination in cases where that makes life difficult for law enforcement.
> I would even go so far as to argue that the use of "hacking tools" to unlock or decrypt phones, and other devices or documents, is inherently a 5th Amendment violation as there is a reasonable expectation that locked and encrypted devices and documents are essentially private in the same way that one's thoughts are.<
It's the 4th Amendment that protects against unreasonable search and seizure, without a warrant or reasonable cause. However, the expectation of privacy is moot once law enforcement gets a search warrant or have reasonable cause. If law enforcement obtained a search warrant to search your home and find a safe, they can use what ever means they have available to open the safe. Be it hiring a locksmith or a person with a blow torch. There is no expectation of privacy for the contents of that safe, once a warrant was issue to search your home and there's reasonable cause that what they are searching for, might be in the safe.
However, what the search warrant won't or shouldn't allow for, is for law enforcement to force you to reveal the combination to the safe or otherwise face jail time. Or even reveal to law enforcement that there's a hidden safe in your home, that you know they will not find. That's what protected under the 5th Amendment under self incrimination, not the contents in your home, your safe or in this case, your smartphone.
If law enforcement got a search warrant, manage to find your hidden safe, open your the safe or hack into your smartphone, without you being forced to reveal where your safe was hidden, the combination of your safe or pass code to your smartphone, then any evidence in your safe or smartphone can be used against you as you were not denied your right under the 5th Amendment, of not being compelled to be a witness against yourself. And your private contents would no longer be protected under the 4th Amendment, as a search warrant was issued before the search proceeded.
Providing the search warrant spells out what they are searching for. If the warrant states that they are searching for a stolen assault rifle, then they have no reason to force you to open your breadbox size safe or unlock your phone, as there's no reason to believe that an assault rifle was hidden in your safe or smartphone. In which case, there is a reasonable expectation of privacy for the contents of your safe or smartphone.
So, imagine a world where the technology exists to allow the authorities to essentially read your mind, your memories, or otherwise infer what you are thinking. In that world, according to your theory of privacy and the Constitution, as long as they get a warrant to use the technology, the 5th Amendment doesn't apply because they got a warrant to search your mind and found the information that way, rather than forcing you to speak it. Such a scenario would essentially make the right to not self incriminate moot, and the 5th Amendment an archaic curiosity.
I would argue that forcing you to divulge passcodes or using "hacking tools" to break into your phone and decrypt documents and other information is much closer to reading your mind than finding a physical safe during a warranted search and breaking into to find physical items and unencrypted documents. At some point a line has to be drawn between warrantable and unwarrantable spaces or the 4th Amendment becomes, not a protection against privacy invasion as intended by the founders, but a tool that effectively eliminates privacy and the protections of the 5th Amendment.
The mistake that you and many others make is to think of the 4th Amendment as a tool for legally breaching privacy. That was not its purpose. Its purpose is to limit breaches of privacy by making it difficult for the government to do so. Without limits the 4th Amendment's purpose becomes perverted into a tool that does exactly the opposite of what it was intended to do.
They legally obtained a warrant. You can be asked to open locked items which may contain evidence such as a trunk, glovebox or even a safety deposit box. How is this different?
If they try to get in without due cause and without a warrant, then I would be right along side you guys screaming government overreach.
"but I do feel strongly that the police should have appropriately regulated authority to perform searches when necessary."
They do. That is the result of getting a search warrant that has been properly (we hope !!) vetted by an impartial judge. But that Search Warrant has inherent limitations. Yes, they can now legally take your phone, BUT they still cannot compel you to incriminate yourself by providing an unlock code.
I like the idea of a "wipe code" as suggested by an earlier commentator. But, the reality for most of us is, I suspect, that there is nothing incriminating on the phone anyway. Still, I hope I have the courage to resist if I am ever the target of an assault like this. I am as much an "arm chair patriot" as the next guy, but realize we don't know how we will rise to the occasion until actually confronted.
I think this one is pretty simple. He had every right to refuse access during the stop. He did not have a right to refuse the subsequent warrant. That was a valid warrant, which requires the identification of exactly what they’re looking for.
Apple needs to add a wipe code for iPhones. If someone demands you unlock your phone, you enter the wipe code and the phone instantly wipes all storage from your main account and goes into an alternate account mode which only contains safe information and apps (you decide what). From then on the wipe code continues to unlock this safe account. No one, not even Apple, will know if you entered the real code or the wipe code.
I can’t say for sure, but I’m reasonably certain that doing so knowingly can be considered destruction of evidence.
I think this one is pretty simple. He had every right to refuse access during the stop. He did not have a right to refuse the subsequent warrant. That was a valid warrant, which requires the identification of exactly what they’re looking for.
They do. That is the result of getting a search warrant that has been properly (we hope !!) vetted by an impartial judge. But that Search Warrant has inherent limitations. Yes, they can now legally take your phone, BUT they still cannot compel you to incriminate yourself by providing an unlock code.
The question is whether compelling someone to reveal a passcode is a violation of their 5th amendment rights. If it is, then the warrant (as far as the passcode was concerned) was unconstitutional. Like I said, most people are of the view that it is a violation of someone’s rights, but it is apparently still an open legal question.
I would argue that forcing you to divulge passcodes or using "hacking tools" to break into your phone and decrypt documents and other information is much closer to reading your mind than finding a physical safe during a warranted search and breaking into to find physical items and unencrypted documents. At some point a line has to be drawn between warrantable and unwarrantable spaces or the 4th Amendment becomes, not a protection against privacy invasion as intended by the founders, but a tool that effectively eliminates privacy and the protections of the 5th Amendment.
The mistake that you and many others make is to think of the 4th Amendment as a tool for legally breaching privacy. That was not its purpose. Its purpose is to limit breaches of privacy by making it difficult for the government to do so. Without limits the 4th Amendment's purpose becomes perverted into a tool that does exactly the opposite of what it was intended to do.
How is a smart phone any different than a personal computer or an office full of file cabinets? Everything is compressed into a smaller device, but it is functionally the same, is it not?
I would argue that forcing you to divulge passcodes or using "hacking tools" to break into your phone and decrypt documents and other information is much closer to reading your mind than finding a physical safe during a warranted search and breaking into to find physical items and unencrypted documents. At some point a line has to be drawn between warrantable and unwarrantable spaces or the 4th Amendment becomes, not a protection against privacy invasion as intended by the founders, but a tool that effectively eliminates privacy and the protections of the 5th Amendment.
The mistake that you and many others make is to think of the 4th Amendment as a tool for legally breaching privacy. That was not its purpose. Its purpose is to limit breaches of privacy by making it difficult for the government to do so. Without limits the 4th Amendment's purpose becomes perverted into a tool that does exactly the opposite of what it was intended to do.
How is a smart phone any different than a personal computer or an office full of file cabinets? Everything is compressed into a smaller device, but it is functionally the same, is it not?
An office full of file cabinets typically contains unencrypted data to which multiple people have access (even if they do have locks). A computer, if encrypted, is more closely analogous to a locked/encrypted smartphone. However, the most important distinction is that for many people smartphones tend to be much more of an extension of their selves, are used as a much more personal "storage", and often contain information of a much more private nature than they would leave on their computers or in a file cabinet. (As an aside, this is what is most offensive about the illegal, unwarranted "searches" by customs agents, demanding that citizens unlock and hand over their phones on reentering the country, without even any real suspicion of wrongdoing.)
There are many people here posting about 'police states.' There is a big difference between a police state, in which the police have virtually unchecked power to do as they please, and the United States where the police power is very clearly regulated and limited by the courts. The simple fact that the police make or attempt a search that you might disagree with does not make it a police state. I certainly hope no one would argue that the police should never have the right/authority to search personal property - the constitution is clear on this as well. After that it becomes a question of how much authority they should have and how it is regulated. This question comes up on a daily basis in the courts across the country and cases routinely get thrown out. I don't think we should give up our right to privacy, but I do feel strongly that the police should have appropriately regulated authority to perform searches when necessary. I don't have a good answer for how that should be managed in the digital age.
And that's the crux. YOU self-admittedly do not have an answer but instead are merely putting forth a defense of the status quo. And all the while police can and do make searches at their good pleasure. People get pulled over or searched all the time even if there is no good reason. Whether that defines the US as "a police state" in the strictest possible sense is not so relevant. What is relevant is how easy it is for you to be searched and then charged if you in any way give even the slightest hint you will not capitulate to their every demand. That may not be a "police state" but it is borderline "oppression." How is a demand to "Capitulate for the greater good!" in any way synonymous with "The Land of the Free"? And I say this as someone who does not use drugs and who does not condone their use and who even tends to vote Republican. Moreover, one of my brothers is a police officer and a very good man at that. And I am well aware that the near endless number of laws and law enforcers we have is a direct result of the actions of bad people. But at the end of the day FREEDOM isn't about what bad people do. If we make a new law for every little bad thing somebody else does, the majority suffers a tremendous loss in terms of general FREEDOM. Policing the public is no exception. Individual liberty should be prioritized by everyone in the US who calls themselves American. Freedom is what defines genuine Americans. Individual Liberty should always be put first, even at the risk of personal injury by having fewer laws and fewer police on the road. We need both laws and law men, but just how many is the crux. I contend that fewer is better than more, for all men, even good men, are flawed and make bad choices. And the more power you give to someone (i.e., the police), the greater the offenses will be (keeping in mind they are always armed, have backup, and can inflict much harm on someone they are targeting). The more laws and law enforcers we have, the more of a "police state" (or oppression of the populace) will be the norm.
As much as I respect law enforcers, I do not worship them like some do. The term "worship" comes from the old English "worth ship" was implies how much worth we give to something. My willingness to respect them doesn't extend to defending them in all situations. Are they under attack daily? Probably. Do some die in the line of duty? Yes, all the time. But we must admit one important fact. THEY CHOOSE THAT JOB! They aren't drafted into serving. And just because they serve, doesn't mean we must bow our heads in subservience to them. They are public "servants" after all, doing that job out of their own free will, and they are monetarily compensated for it. And if they come to dislike that compensation (which is the public's way of thanking them for the work they do), they can quit and find a less dangerous form of employment.
Lastly, I must emphasize that it's stupid to do drugs, even "soft drugs" like Marijuana. Even smoking tobacco or drinking alcohol is silly. Heck, I don't even drink coffee, and no I'm not Mormon either. Imagine if you legally smoke some drug in the US but then take an overseas trip. Your habit could land you in jail or worse, which means it's best to avoid doing that particular drug at all. Better safe than sorry. But despite being that strict on drug use, I stand for individual liberty.
You know you are a true proponent of liberty when you afford your neighbor more liberty than you would afford your own self. I would never, ever do drugs. Yet I hesitate to ban tobacco (even thought I HATE it and have an allergy to it) or alcohol (we tried that and failed) or even marijuana. Patrick Henry was willing to choose death over the loss of liberty, whereas Americans today sadly are welling to sell their own soul for the mere "feeling" of added security. It ought not to be so. May we be respectful of the law and law enforcers while at the same time not hesitate to alter the status quo by eliminating unnecessary and harmful laws and reducing powers granted to law enforcers (e.g., body cameras are a part of that, helping keep their power in check). Because absolute power corrupts absolutely, we must limit power granted to man, even those who enforce laws to regulate man. The more checks and balances we have and the fewer crazy cases of "your under arrest for resisting arrest" the less of a police state it will be and the less oppressed the public will feel.
There is much more to be said on this subject, but here are some links for further study:
You misunderstood my last statement - I don’t have a good solution for applying search warrants in the era of digital devices and encryption and how to balance legitimate searches with digital privacy.
The questions you raise are actually easier to deal with. I’m not arguing that there are not police who abuse their power or that unreasonable searches don’t take place; they undoubtedly do. They also get thrown out by the courts on a regular basis. The fact that that may mean guilty people go free is frustrating, but i’s also a price we pay for personal freedoms. It’s all a balance that must be struck. I haven’t seen anyone here suggesting that people ‘capitulate for the greater good,’ unless you take my statement about police having a legal right to perform searches as such. In order for police to do their jobs, they need to have a certain amount of power. If no one was required to ‘capitulate’ to them in any circumstance we would essentially have anarchy.
Like I said, in the United States, we all have certain guaranteed rights and freedoms, but those are not unlimited. The scope and degree of those limitations is a fundamental part of our legal and legislative bodies’ duties.
If no one was required to ‘capitulate’ to them in any circumstance we would essentially have anarchy.
True, but that is somewhat overlooking the point about power and the DEMAND for respect. If you even look at some officers the wrong way, you will be marked by them which could end in an unfortunate way for you. Sandra Bland is but one of many such example cases. That officer demanded a certainly level of respect he did not receive and she took the fall for it, and tragically her story ended in her death. She was a tad sassy but that should not be a crime. Police officers should be trained to treat people kindly even when people are not kind back to them, yet that is not the case. And while not all cases of arrest end in death, the Sandra Bland case still serves as example of an officer who expected capitulation/worship/cowering -- pick your preferred term.
When you put flawed human beings in power positions, that power can and does go to their head. It reaches and slowly corrupts even the best of us. That combined with the fact police officers are armed and have armed backup is all the more reason severe checks be placed upon them to prevent their use of power to end in tragedy for the average citizen.
If you didn't click any of the links at the end of my previous post, I strongly recommend you at least watch the following video. The first half is by a lawyer but the latter half is by a police officer, and you will be surprised by what he says. Seriously, watch it.
And all for something that’s perfectly legal in many states.
Well... it didn't help his persona for carrying a loaded pistol in his car. Seriously. Sure, I get that THC/Pot is legal in many states now, but considering this guy's track record for getting himself in trouble with the law he should have learned something by now.
Did you see how there was no handgun charge, so that means the firearm was legal.
The charge was having a handgun while committing a felony (possession of marijuana)
Yes... I saw that the handgun charge was dropped. So what?
Whether it's within your right or not my point is that from this article, this guy has had numerous run-ins with the police. Right or wrong, whatever he's doing he seems to continue to attract attention to himself. Charges like this are dropped for numerous reasons and I highly doubt a guy of his "caliber" (pun intended) had a permit to carry that pistol and it would make any officer nervous when they pull over a vehicle.
I'm Latino (Mexican-heritage) and trust me that there's a lot of 100% legal activity I can do that will attract the attention of police officers. Do I do it? No. Can I do it? Sure. Do I want the hassles of explaining myself to a cop, particularly a nervous one? No. You'll probably imply that restricting my legal but attention-getting behavior I'm somehow being oppressed by a police state. No... I just have better, more productive things to do with my time and police officers have enough stress to deal with that I don't want to contribute to that.
I think this one is pretty simple. He had every right to refuse access during the stop. He did not have a right to refuse the subsequent warrant. That was a valid warrant, which requires the identification of exactly what they’re looking for.
What were they looking for on his phone? It’s unclear in the article. I see that he received a text with “did they find it”, I don’t see how that allows them to identify exactly what they were looking for. Perhaps it identifies reasonable suspicion, I would argue it’s a bit of a stretch. The judge issuing the warrant decided otherwise so at that point it doesn’t matter, you’re correct.
My issue is having to incarcerate him for 40+ days without a trial or resolution to the crime he was supposed to have committed. I see that increasingly common system as a “guilty until proven innocent”, that has very dire and long lasting consequences for the person being forced into that system. It’s an INCREDIBLY common occurrence, particularly for low income citizens that do not have the collateral/aka a morgage to leverage or the funds to post into the bail system. It’s fine and dandy if you did commit the crime and have been found to deserve to be incarcerated, not fine to be incarcerated for that long of a period prior to a conviction and without the opportunity to present your case/evidence or otherwise defend yourself. Not to mention the number of things that may and likely will happen to you while you’re incarcerated prior to being found guilty, both inside and outside (in your personal life) of the facility you’re held at.
Comments
As much as I respect law enforcers, I do not worship them like some do. The term "worship" comes from the old English "worth ship" was implies how much worth we give to something. My willingness to respect them doesn't extend to defending them in all situations. Are they under attack daily? Probably. Do some die in the line of duty? Yes, all the time. But we must admit one important fact. THEY CHOOSE THAT JOB! They aren't drafted into serving. And just because they serve, doesn't mean we must bow our heads in subservience to them. They are public "servants" after all, doing that job out of their own free will, and they are monetarily compensated for it. And if they come to dislike that compensation (which is the public's way of thanking them for the work they do), they can quit and find a less dangerous form of employment.
Lastly, I must emphasize that it's stupid to do drugs, even "soft drugs" like Marijuana. Even smoking tobacco or drinking alcohol is silly. Heck, I don't even drink coffee, and no I'm not Mormon either. Imagine if you legally smoke some drug in the US but then take an overseas trip. Your habit could land you in jail or worse, which means it's best to avoid doing that particular drug at all. Better safe than sorry. But despite being that strict on drug use, I stand for individual liberty.
You know you are a true proponent of liberty when you afford your neighbor more liberty than you would afford your own self. I would never, ever do drugs. Yet I hesitate to ban tobacco (even thought I HATE it and have an allergy to it) or alcohol (we tried that and failed) or even marijuana. Patrick Henry was willing to choose death over the loss of liberty, whereas Americans today sadly are welling to sell their own soul for the mere "feeling" of added security. It ought not to be so. May we be respectful of the law and law enforcers while at the same time not hesitate to alter the status quo by eliminating unnecessary and harmful laws and reducing powers granted to law enforcers (e.g., body cameras are a part of that, helping keep their power in check). Because absolute power corrupts absolutely, we must limit power granted to man, even those who enforce laws to regulate man. The more checks and balances we have and the fewer crazy cases of "your under arrest for resisting arrest" the less of a police state it will be and the less oppressed the public will feel.
There is much more to be said on this subject, but here are some links for further study:
https://www.unlawfulshield.com/2018/07/the-basics-of-qualified-immunity/
https://youtu.be/mK0h1yfFQ7I
https://youtu.be/d-7o9xYp7eE
It's the 4th Amendment that protects against unreasonable search and seizure, without a warrant or reasonable cause. However, the expectation of privacy is moot once law enforcement gets a search warrant or have reasonable cause. If law enforcement obtained a search warrant to search your home and find a safe, they can use what ever means they have available to open the safe. Be it hiring a locksmith or a person with a blow torch. There is no expectation of privacy for the contents of that safe, once a warrant was issue to search your home and there's reasonable cause that what they are searching for, might be in the safe.
However, what the search warrant won't or shouldn't allow for, is for law enforcement to force you to reveal the combination to the safe or otherwise face jail time. Or even reveal to law enforcement that there's a hidden safe in your home, that you know they will not find. That's what protected under the 5th Amendment under self incrimination, not the contents in your home, your safe or in this case, your smartphone.
If law enforcement got a search warrant, manage to find your hidden safe, open your the safe or hack into your smartphone, without you being forced to reveal where your safe was hidden, the combination of your safe or pass code to your smartphone, then any evidence in your safe or smartphone can be used against you as you were not denied your right under the 5th Amendment, of not being compelled to be a witness against yourself. And your private contents would no longer be protected under the 4th Amendment, as a search warrant was issued before the search proceeded.
Providing the search warrant spells out what they are searching for. If the warrant states that they are searching for a stolen assault rifle, then they have no reason to force you to open your breadbox size safe or unlock your phone, as there's no reason to believe that an assault rifle was hidden in your safe or smartphone. In which case, there is a reasonable expectation of privacy for the contents of your safe or smartphone.
IDW, I agree on a lot of what you've mentioned but I would have to disagree with the first part of your rebuttal in your first paragraph. Police have to have a pretty good reason in which to search a person's property. I thinkg most understand perfectly why that is necessary and use good judgement. Especially today with everyone having cell phone cameras and businesses having security cameras. Yes, there are always bad apples but I'm talking about the lions share of law enforcers. Look, I get it. If I know full well that I am not breaking the law and I got caught up in an event I'm not going to like a police officer shaking me down. Say, for instance, I'm involved in an armed robbery. Police show up and there are 6 people in the convenience store. They do not know who is who and who did what. That said all 6 people, in a law enforcer's eyes, will be "involved". That means I may be searched because they don't know if I am a participant in the crime or not. I am innocent of this crime but in order for the police to figure it out I will comply with what may be considered to some an unjust search. I am probably oversimplifying this a tad but humor me. Now, if during that search they find that I have a crack pipe in my back pocket. Does the law enforcement officer have the right to continue the search and make an arrest? I'm not a legal tactician by any means so I can't answer that. I would guess, yes? Would that hold up in a court room? I haven't the foggiest. Maybe you all can help me with that.
As for more or less law enforcers on the streets I would have to agree that there has to be a good balance. I don't want police officers on every corner of my street. However, where I live there has been a rash of crime in a particular area of town. 50 state police officers were instructed to add to the current law enforcement levels there to help stomp out crime. It worked. Crime went down dramatically. Arrests went up. Criminals now know that there is more law enforcement there so they stay away and crime has been mitigated. Visitors felt more at ease coming into this particular area because they knew that law enforcement was there. Businesses were also happy to see the level of law enforcement officers go up. So, having LESS law enforcement was not a good thing. In fact it was the opposite. MORE law enforcers were required. Again, a good balance (crime vs law enforcement).
Again, thanks to the both of you for well thought out and constructive arguments. I wish most would approach a respectful debate in this fashion today so that both sides can be heard.
There was some thoughtful and intelligent discussion on this topic (and some equally thoughtless) and I'm glad today that this forum exists. I'm not trying to promote the ACLU, which I don't always agree with, but in this case it could have helped. Even though the case was dismissed, depending on how it was dismissed, it might still be on the suspect's record, so the ACLU may still be able to help.
I would argue that forcing you to divulge passcodes or using "hacking tools" to break into your phone and decrypt documents and other information is much closer to reading your mind than finding a physical safe during a warranted search and breaking into to find physical items and unencrypted documents. At some point a line has to be drawn between warrantable and unwarrantable spaces or the 4th Amendment becomes, not a protection against privacy invasion as intended by the founders, but a tool that effectively eliminates privacy and the protections of the 5th Amendment.
The mistake that you and many others make is to think of the 4th Amendment as a tool for legally breaching privacy. That was not its purpose. Its purpose is to limit breaches of privacy by making it difficult for the government to do so. Without limits the 4th Amendment's purpose becomes perverted into a tool that does exactly the opposite of what it was intended to do.
They do. That is the result of getting a search warrant that has been properly (we hope !!) vetted by an impartial judge. But that Search Warrant has inherent limitations. Yes, they can now legally take your phone, BUT they still cannot compel you to incriminate yourself by providing an unlock code.
I like the idea of a "wipe code" as suggested by an earlier commentator. But, the reality for most of us is, I suspect, that there is nothing incriminating on the phone anyway. Still, I hope I have the courage to resist if I am ever the target of an assault like this. I am as much an "arm chair patriot" as the next guy, but realize we don't know how we will rise to the occasion until actually confronted.
The question is whether compelling someone to reveal a passcode is a violation of their 5th amendment rights. If it is, then the warrant (as far as the passcode was concerned) was unconstitutional. Like I said, most people are of the view that it is a violation of someone’s rights, but it is apparently still an open legal question.
How is a smart phone any different than a personal computer or an office full of file cabinets? Everything is compressed into a smaller device, but it is functionally the same, is it not?
You misunderstood my last statement - I don’t have a good solution for applying search warrants in the era of digital devices and encryption and how to balance legitimate searches with digital privacy.
The questions you raise are actually easier to deal with. I’m not arguing that there are not police who abuse their power or that unreasonable searches don’t take place; they undoubtedly do. They also get thrown out by the courts on a regular basis. The fact that that may mean guilty people go free is frustrating, but i’s also a price we pay for personal freedoms. It’s all a balance that must be struck. I haven’t seen anyone here suggesting that people ‘capitulate for the greater good,’ unless you take my statement about police having a legal right to perform searches as such. In order for police to do their jobs, they need to have a certain amount of power. If no one was required to ‘capitulate’ to them in any circumstance we would essentially have anarchy.
Like I said, in the United States, we all have certain guaranteed rights and freedoms, but those are not unlimited. The scope and degree of those limitations is a fundamental part of our legal and legislative bodies’ duties.
When you put flawed human beings in power positions, that power can and does go to their head. It reaches and slowly corrupts even the best of us. That combined with the fact police officers are armed and have armed backup is all the more reason severe checks be placed upon them to prevent their use of power to end in tragedy for the average citizen.
If you didn't click any of the links at the end of my previous post, I strongly recommend you at least watch the following video. The first half is by a lawyer but the latter half is by a police officer, and you will be surprised by what he says. Seriously, watch it.
Perhaps it identifies reasonable suspicion, I would argue it’s a bit of a stretch. The judge issuing the warrant decided otherwise so at that point it doesn’t matter, you’re correct.
My issue is having to incarcerate him for 40+ days without a trial or resolution to the crime he was supposed to have committed. I see that increasingly common system as a “guilty until proven innocent”, that has very dire and long lasting consequences for the person being forced into that system. It’s an INCREDIBLY common occurrence, particularly for low income citizens that do not have the collateral/aka a morgage to leverage or the funds to post into the bail system.
It’s fine and dandy if you did commit the crime and have been found to deserve to be incarcerated, not fine to be incarcerated for that long of a period prior to a conviction and without the opportunity to present your case/evidence or otherwise defend yourself. Not to mention the number of things that may and likely will happen to you while you’re incarcerated prior to being found guilty, both inside and outside (in your personal life) of the facility you’re held at.