The Law Office of Brandon F. Douglass -

Recent Posts

More on cell phone searches
The constitutionality of the NSA’s cell phone data collection program
Can a police officer search my cellular phone without a search warrant?
More on driving under the influence of a controlled substance.
What if I consented to a search and a police officer found something illegal?


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More on cell phone searches

The Supreme Court of the United States agreed this week to hear a case dealing with the constitutionality of warrantless cell phone searches.  Here are articles from the Washington Post, the Volokh Conspiracy, and Wired Magazine on the issue.

The constitutionality of the NSA’s cell phone data collection program

I am fascinated by the intricacies of the Fourth Amendment.  One of the things about this area of the law that I find especially interesting is that while there are a number of exceptions and countless applications of Fourth Amendment search and seizure rights, the basic principles are universally applicable.  Courts follow a similar method of analysis for cases involving something as simple and tangible as a pack of cigarettes, and something as complex and abstract as so-called metadata.

Can a police officer search my cellular phone without a search warrant?

Like so many legal issues, it depends.  The Supreme Court of the United States has not ruled on this specific issue, but other federal and state appellate courts have ruled on the issue.  A few months ago, the United States Department of Justice is asking that the Supreme Court weigh in.  Here is anarticleon the Justice Department’s request.  As you will note while reading this article, the case at issue involved a flip phone, not a smart phone.  It is unclear whether the Supreme Court would seek to expand the inquiry to include smart phones and the massive amount of information that they often contain.

More on driving under the influence of a controlled substance.

An increasing number of states, including California, allow some form of Marijuana possession, either for medicinal (California) or recreational (Colorado and Washington) use.  As a result of these changes, law enforcement officials are working to devise new methods of determining whether someone is driving under the influence of marijuana.  Here is an article on Colorado's attempts at addressing the issue.

What if I consented to a search and a police officer found something illegal?

Often times, a police officer will ask permission to search something.  Although people have a right to refuse, they often agree and this can sometimes result in the officer locating something unlawful, such as a controlled substance or evidence of a crime.  If this occurs, you should consult an attorney to determine whether your consent was sufficient under the law.
Consent is a specifically established exception to the Fourth Amendment’s warrant requirement. (Schneckloth v. Bustamonte

Can the police search me if I am arrested?

Yes, if you are lawfully under arrest.

Police may, incident to a lawful custodial arrest, search the person of a defendant and the area immediately surrounding him in order to remove weapons and prevent the concealment of evidence. (People v. Gutierrez(1984) 163 Cal.App.3d 332, 335citing Chimel v. California(1969) 395 U.S. 752, 763.)  An officer may search an individual incident to his lawful arrest regardless of the offense for which the arrest is made.  (United States v. Robinson(1973) 414 U.

What does “probable cause to arrest” mean?

Probable cause exists if the facts known to the arresting officer would lead a person of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime. (People v. Guajardo(1994) 23 Cal.App.4th 1738, 1742.)  In the vehicle context, a warrantless search is permissible where there is probable cause.  (See People v. Strasburg(2007) 148 Cal.App.4th 1052, 1059.)  If an officer has probable cause to believe that an automobile contains contraband or evidence of a crime, he may perform a warrantless search of the vehicle for that contraband or evidence.

How long can the police detain me if I am pulled over?

It depends.

Generally, an investigatory detention is unconstitutional if it is “‘extended beyond what is reasonably necessary under the circumstances [that] made its initiation permissible.’” (People v. McGaughran (1979) 25 Cal.3d 577, 586.)  If a detention becomes unreasonable in length, it essentially becomes an arrest that must be supported by probable cause.“ (See People v. Gomez (2004) 117 Cal.App.4th 531, 538.)

When does contact with a police officer become a detention?

If you are approached by a police officer and a conversation starts, does that mean you are detained?  Depends.
The Fourth Amendment does not prohibit officers from asking people questions to people on the streets. (People v. Bennett(1998) 68 Cal.App.4th 396, 402.)  During a consensual encounter, a police officer may ask a citizen to remove his hands from his pocketsand inquire into the contents of his pockets. (People v. Ross

When can a police officer detain me?

When is it legal for a police officer to stop you in your car on the street?  A police officer may detain a person if he or she has a reasonable, articulable suspicion that the person has engaged in or about to engage in criminal activity. (Terry v. Ohio(1968) 392 U.S. 1, 21.)  Reasonable suspicion is shown where “the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provides some objective manifestation that the person detained may be involved in criminal activity.
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