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You are an on-duty Military Law Enforcement Officer (Service Irrelevant) You make contact with and apprehend a known trouble maker and drug user on post. He has no military affiliation. As you search him/her you find a Cell phone in their coat pocket?
Can you search phone for evidence? Yes or No (Justify your answer)
Can you search phone for evidence? Yes or No (Justify your answer)
Law
Police
Military police
Law Enforcement
Posted 6 y ago
Responses: 7
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You will need probable cause to search the phone. If the phone is locked, you will need a warrant to open it and phone manufacturers are reluctant (read adamantly against) assisting in opening a phone citing privacy as the software can be used to open other phones.
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MAJ Bryan Zeski
SSG (Join to see) - Legally? What the owner wants DOES have something to do with it.
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SSgt Jim Gilmore
SSG (Join to see) Legally, there is a reasonable expectation of privacy. To force phone makers to create back doors to bypass encryption violates privacy.
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SSG (Join to see)
SSgt Jim Gilmore - Phone makers have already made the back door. People just have not realized it for the sake of conviniance, For a reasonable expectation of privacy.. and you are going the right direction, the phone ownere needs to DO something
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not as easy as a yes or no answer SSG, as federal and State laws come into play here. The general rule is you cannot search their electronic devices without a warrant unless the person gives permission, unless you can prove , beyond doubt, that the search is required to save a life in immediate threat. You are governed by federal law first, state law second, and it is usually a mixture of the two. being a trouble maker/drug use seems to me to not fall into the category of a life in immediate threat. Do it the right way and get a warrant. You will not be in the wrong if you get a warrant, but you could be open to having anything you find on that phone being inadmissible if you just search it because you arrested a person for what would be deemed a misdemeanor offense.
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SSG Robert Perrotto
SSG (Join to see) - ok - an exercise in thought. To fully answer this question, one would have to delve into precedents, and federal search and seizure statutes, and how the two are interpreted by a federal judge. The constitutional rights of the arrestee need to be taken into account as well, as searching their electronic devices without a warrant can be viewed as a violation of those rights. It sucks, but without a clear and present threat posed by the alleged perpertrator, The general rule is you need a warrant or permission to search their electronic device.
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SSG (Join to see)
SSG Robert Perrotto - there you go! But there is a way search a cell phone without a warrant, and without consent
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SSG Robert Perrotto
SSG (Join to see) - other then the one I already presented? If so, I would like to enrich my knowledge.
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Based on ONLY the information you have provided here, the answer is no. Because you had no cause for the arrest, any search subsequent to arrest is also invalid.
Merely being a "known troublemaker" does not provide probable cause, or even reasonable suspicion, without other clearly defined and articulable actions.
Merely being a "known troublemaker" does not provide probable cause, or even reasonable suspicion, without other clearly defined and articulable actions.
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