I am a criminal defense attorney with the firm Valencia, Ippolito and Bowman in San Jose, California, I am not only a former prosecutor but a former DJ and drummer and an avid festival goer. I combine my two passions (The Law and Music) in my column, “The Festival Lawyer”.
The “Festival Lawyer” is an ongoing column giving festival-goers practical advice about their rights in any encounter with the police. The column also discusses harm reduction and other safety issues relevant to the festival community. My idea for “The Festival Lawyer explains in less than two minutes” video series is to outline some simple steps you can take to safeguard your Constitutional Rights in a variety of situations.
Although geared primarily for festival-goers, these tips actually apply to anyone, anywhere. The first video in my series outlines the five steps you need to take to keep your phone free from unwanted police searches.
The “Festival Lawyer Network” is a YouTube channel dedicated to giving festival-goers practical advice about their rights in any encounter with the police. I’ll also be posting videos about “harm reduction.” the drug war and other safety issues relevant to the festival community. They also have a Facebook page.
Therefore the simplest tip I can give you is to NEVER give the police permission to search your phone.
I can hear you saying, Never?! Really? Never? …As in never ever?
Yes, never ever. Or to paraphrase Nigel Tufnel, “None more never”
The Supreme Court has ruled that it is your absolute and complete right to say “NO’ to a search of a phone. So, a police officer who asks you for permission to search your phone is basically saying,“Hi, mind if I violate your Constitutional Rights by rummaging through your personal property?”Remember, the Supreme Court’s ruling in Riley specifically addresses searches performed during an arrest. So if you are not under arrest – say you got pulled over for a traffic citation – then the police have even less right to search your phone.
The important point is that if you give the police permission to search your cell phone you can’t later go back and argue about their actions. You’ve waived your right to object. On the other hand, If you refuse, the police can still search the phone, but now they have to justify their search to a judge and show they have probable cause for the search.
That’s why, legally speaking, there is just no good reason for you to agree to ever let the police go on a “fishing expedition” of ANY of your personal property.
If you are asked if you consent to a search, say clearly and firmly: