By: T F Stern
T F Stern’s Rantings

Yesterday, my attention was drawn to an article written by Buck Sexton which appeared on The Blaze, “Calif. Appeals Court Approves Cell Phone Searches During Traffic Stops.” I didn’t know cell phones were that big a deal. Okay, maybe we shouldn’t text while shifting and most of us would agree that hands free is better than having half your field of view blocked.

“In a case explicitly decided to set a precedent, the California Appellate court has determined police officers can rifle through your cellphone during a traffic violation stop.”

There is a problem with granting police powers which extend beyond protections built into a citizen’s God given right as covered under the 4th 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.”

Times may have changed since this wonderful document was penned; however, the intent to protect a person’s “papers and effects,” which would now include digital information housed in any number of devices, shall not be violated. Police officers have been empowered to enforce the law and when needed to search suspects for weapons or illegal contraband; but have never had the power to go on “fishing expeditions” under the color of “inventorying” a prisoner’s property.

Speaking from the standpoint of a retired police officer, the rules of evidence were put in place to secure individual rights; not to empower a police state. Items found during a lawful inventory which were clearly prohibited, such as weapons or illegal substances, could be entered into a court of law as evidence. However, there is a limit to what can be considered “in plain view” or what items might be considered “hazardous” and a risk to the safety of either the public in general or the officer’s immediate safety.

“On December 6, 2009 Reid Nottoli was pulled over for speeding by Santa Cruz County Deputy Sheriff Steven Ryan. Sheriff Ryan then suspected after pulling Nottoli over that the 25-year-old was under the influence of drugs.

As Nottoli’s license was also expired, the Sheriff decided to impound the vehicle. Nottoli requested to leave his car parked on the side of the road. Sheriff Ryan refused, and decided to conduct an “inventory” search prior to the towing.”

Up until this point, the police were acting in the interests of the public, taking the suspect into custody as a possible DUI and an expired driver’s license is a lawful arrest. The officer was obligated by law to inventory items in the suspect’s vehicle prior to having it towed to an impound. Again, for the benefit of the suspect and to protect the officer from unwarranted accusations of theft or neglect in the event items later turned up missing or were claimed to be missing.

“A fully legal Glock 20 pistol with a Guncrafter Industries 50 GI conversion that should have been stored in the trunk of the vehicle. He also noticed Nottoli’s Blackberry Curve which, after it was turned on, displayed a photograph of a mask-wearing man holding two AR-15 rifles akimbo.”

Aside from that first sentence being incomplete, the court was informed that a legal weapon was found during the inventory. Depending on the laws in California, the officer either would file additional charges for improperly transporting a weapon or, since this was a lawful weapon, the officer might have stored the weapon in a proper manner until such time as the suspect was released.

Pay attention. This is where the court has stepped over the line and violated the 4th Amendment rights of every citizen via this one case. The officer stated the suspect’s cell phone was not on during the inventory process. This was not a “search incident to arrest.” The officer turned the cell phone on and at that time observed a photograph which caused him to believe photographs contained therein may link the suspect with an unrelated crime.

Read the intent of the 4th Amendment once again.

“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.”

If the officer stated he feared for his personal safety or perhaps the phone was hollow and contained illegal drugs, it might have been reasonable to play with it. If the suspect could be connected with terrorist activities in which cell phones were used to trigger explosive devices from a remote location, at that moment the officer might have the authority to turn on the device even if such actions would be fool hearty considering the possibility that the simple act of activating the cell phone might be enough to trigger an explosive device depending on how it was programmed.

Idle curiosity caused the officer to turn the cell phone on, nothing more. No warrant could be obtained under such circumstances regardless of what images where presented to the officer’s view since he had to turn the device on when it was no threat in its present state. There was no probable cause to believe the officer was arresting anyone but a DUI traffic violator who failed to secure a legal weapon in the trunk.

“…the appellate court’s decision, written by Franklin Elia, which read in part:

“The deputies had unqualified authority under Gant (*) to search the passenger compartment of the vehicle and any container found therein, including Reid’s cell phone. It is up to the US Supreme Court to impose any greater limits on officers’ authority to search incident to arrest.”

(*)

“This case demonstrates that the scope of exception to the Fourth Amendment’s protection against governmental searches and seizures relating to searches incident to arrest is still unclear. Both parties address Belton’s bright-line rule to the Fourth Amendment allowing warrantless vehicular searches incident to a lawful arrest. If the Supreme Court adopts Arizona’s position on Belton, police will have broad discretion to search the vehicle of any arrestee, subject only to the limitation that the arrestee was a “recent occupant” of the vehicle. A decision for Gant, on the other hand, would require an officer to reasonably fear for his safety or the integrity of the evidence before he could search an arrestee’s vehicle without a warrant. In either case, the Supreme Court’s decision may further define the extent of police authority to perform warrantless vehicular searches incident to a lawful arrest.”

I’m sorry Franklin Elia, opening a closed container which may or may not hide from plain view weapons or contraband is not the same as opening a closed digital file belonging to a citizen. This no different than extracting information directly from the suspect’s mouth and is most definitely a violation of the 4th Amendment.

As a concerned citizen and retired police officer, it is my duty to uphold the Constitution of the United States. In the long run, we are trading security for liberty and those who do so deserve neither security nor liberty. Isn’t that what Benjamin Franklin warned?

Our judiciary system is being used to transform America into a police state; troubling to say the least. The rule of law which holds our society together appears to have been abandoned in favor of the police state. Our founding documents and the limits placed on government act to protect individual God given rights. Our courts now act with impunity violating individual rights, and with each new decision advance the notion that such actions are justified; not by our Constitution but through each amended court decision linked one upon the other. It would appear we have already become subjects of the state rather than citizens.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

This article has been cross-posted to The Moral Liberal, a publication whose banner reads, “Defending The Judeo-Christian Ethic, Limited Government & The American Constitution.”