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Can Police Search Your Cellphone Without a Warrant?

The Massachusetts Supreme Judicial Court ruled police don't need a search warrant to look at a cellphone's call list after arresting the phone's owner. As courts around the country grapple with the issue, tell us: is this reasonable search and seizure?

 

What's the difference between personal information and correspondence you have physically stored in your home, and similar information that's on your cellphone? And what should police have access to without a warrant?

It's a question that courts across the nation are dealing with it and one that arose here in Massachusetts on Wednesday, when the Supreme Judicial Court ruled that police don't need a search warrant to look at the call list of a person's cellphone during while searching that person's personal property after an arrest.

However, in writing the court's opinion for Commonwealth vs. Demetrius A. Phifer, Justice Margot Botsford cited other court cases that raise questions about the extent that law enforcement officials can access information stored on a cellphone.

"Today's cellular telephones are essentially computers, capable of storing enormous quantities of information, personal, private, and otherwise, in many different forms," Botsford wrote. "They present novel and important questions about the relationship between the modern doctrine of search incident to arrest and individual privacy rights.

"Although an individual's reasonable expectation of privacy is diminished concerning his or her physical person when subject to a lawful arrest and taken into custody," she continued, "the same may not necessarily be true with respect to the privacy of the myriad types of information stored in a cellular telephone that he or she is carrying at the time of arrest."

The New York Times reported last month about divergent rulings in courts across the country regarding information stored on cellphones, such as a Rhode Island judge throwing out cellphone evidence obtained without a search warrant that led a man being charged with the murder of a 6-year-old boy.

A Washington court likened text messages to voice mail messages that can be overheard by anyone in a room, the Times reported, and ruled they are not protected by state privacy laws, while a federal appeals court in Louisiana is wrangling over whether location records stored in smartphones are private information or business records that belong to the phone companies.

Meanwhile, just last week the Senate Judiciary Committee approved a bill that if passed would limit law enforcement officials' warrantless access to email, private Facebook posts and other information that's stored on the Internet. CNET.com reported that tech firms including Apple, Google, Facebook and Twitter have urged Congress to update the Electronic Communications Privacy Act, passed in 1986, "and preserve the same privacy rights that Americans enjoy if their files are printed out and stored in a cabinet at home."

What should police be able to search on a cellphone without a warrant? The call log? Emails and private Facebook or Twitter messages? GPS location data that track where the phone has been? Should it all be fair game, should it all require a search warrant, or is it a mix? Tell us what you think in the comments.

Related Topics: 4th Amendment, Email, Facebook, Geotagging, Massachusetts Supreme Judicial Court, Twitter, cellphones, and search warrants

Josh Chace

12:41 pm on Friday, December 7, 2012

That's why I keep a passcode on access to my phone. If the Cop wants to search it.. "Oops, I forgot the code".

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Bob

12:59 pm on Friday, December 7, 2012

That will slow them down for @3 minutes...

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Kevin

4:12 pm on Friday, December 7, 2012

Its actually not a bad idea. What will they charge you with, impeeding an investigation? What are they investigating. Charges all have to go in line with one another. If I did that, they can only try 10 times to crack it before it auto-erases and shuts off

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Mike G.

9:15 pm on Friday, December 7, 2012

Your phone then becomes evidence. Hope you won't need it for the next 5 months or so.

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Kevin

9:26 pm on Friday, December 7, 2012

Theyd be keeping it anyways if it was evidence and unless they charged me with something, they cant keep it as evidence

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Bob

1:17 pm on Monday, December 10, 2012

Kevin, Verizon or what ever cell service you have will reset the password on the device in about 3 minutes. They won't need to try 10 times.

THEBIGBT

1:58 pm on Friday, December 7, 2012

Go ahead they can check my phone. They can track down where the BIGBT orders his food from and places his horse racing bets. They will also see a few calls to NETFLIX customer service complaining about a few problems.

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Gene Pinkham

2:06 pm on Friday, December 7, 2012

Ah the 4th Amendment. How quaint.

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Jason

3:59 pm on Friday, December 7, 2012

Yes, with probable cause.

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Randy Winslow

5:03 pm on Friday, December 7, 2012

It depends on whether or not you have an expectation of privacy concerning your phone. If it has an access code and it is used I would argue that you have a reasonable expectation of privacy. If you do not use it than you do not expect privacy. Without the lock it is hard to argue that there is an expectation of privacy.

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Daniel DeMaina

6:12 pm on Friday, December 7, 2012

As in, "Well my glove compartment is locked so is the trunk in the back and I know my rights so you goin' need a warrant for that"?

(Sorry. Couldn't help myself.)

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Mike G.

9:16 pm on Friday, December 7, 2012

10 bucks nobody got that reference. I've got your back, Dann.

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Anon

7:04 am on Saturday, December 8, 2012

If you don't get that reference, well, I feel bad for you son...

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Diana

11:00 am on Saturday, December 8, 2012

I got 99 problems, but pop cultural illiteracy ain't one.

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Chris Caesar

2:19 pm on Saturday, December 8, 2012

I got the, Dann Patrol on the site patrol; trolls that want to make sure my casket's closed.

That's the best I could do, sorry.

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Mike G.

1:05 am on Sunday, December 9, 2012

Losers. I'm not coughing up 10 bucks.

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Amber B.

9:57 am on Monday, December 10, 2012

DDeM, aren't you sharp as a tack? ;)

Sick of this city

7:38 pm on Friday, December 7, 2012

They have been doing it for years whether theres a law against it or for it. Twice my son was arrested and both times they not only kept his phone and told him it wasn't w/his belongings but they used it and contacted one of his contacts and damn near got my son killed by saying they were my son and setting them up.

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Jason

8:56 pm on Friday, December 7, 2012

Sounds like your son is real asset to the community. Hope he changed his ways. And stays off the radar.

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Joe Bill

9:59 am on Sunday, December 9, 2012

Your son must be an upstanding member of society

Tom Maggiacomo

8:44 pm on Friday, December 7, 2012

This is totally ridiculous. That info is private!

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Jason

8:57 pm on Friday, December 7, 2012

Just do anything that would MAKE them want to look at it...pretty simple really.

david mokal

9:10 pm on Friday, December 7, 2012

If it has an antenna its free game. I hear cell conversations all the time on the State Police Frequencies. My scanner is not altered in anyway. Cellphones ...cordless phones can be intercepted thru a scanner also cordless phones. Many of the scanners have a search mode wich will automatically find and lock a frequencies down. Never ever do bussiness on cell or cordless phone. Use a wired in. Also wireless headphones can intercept cell calls because they are on the same frequencies. It is not deliberate it happends. Baby monitors also can be heard. So beware of what you put on your cell or cordless.

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R Gagnon

11:52 am on Wednesday, December 12, 2012

I thought cell phone transmissions were packetized. In other words, all you would hear is high frequency noise. Maybe the analog functionality could be picked up in a legible format over RF but cell phones operate digitaly most of the time to save power.

Joe Gray

8:44 am on Saturday, December 8, 2012

Be careful, your TV set will be watching you too. See all the patents being issued lately. I have friends who put strips of paper over the webcam in their laptops, since you don't know who is watching you without a warrant... <smile>

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saul glick

8:56 am on Saturday, December 8, 2012

Yes Joe. That is no as far fetched as it seems. Why can't your cable box watch you?

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Josh Chace

9:21 am on Saturday, December 8, 2012

How paranoid can you be? You do realize you can just disable webcams in the system settings without having to think someone can access it (which they can't). People need to stop watching CSI and movies thinking any of that stuff actually can happen.

And Joe, those patents will never come to fruition. Samsung has already tried developing a TV with "seeing" technology to identify brands etc.. And nothing says you're required to put the box in your home, should they try and launch it.

Take off your tin foil hats.

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david mokal

12:52 pm on Saturday, December 8, 2012

@ Joe I dont know how true this is but a keylogger or spyware can turn on you internet Camera and was told to me to allways unplug. Has anyone outhiere ever hear of this?

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Joe Gray

9:28 pm on Saturday, December 8, 2012

Even when turned off, software can re-enable these devices on your phone or laptop. if I recall correctly, major companies, like Google and maybe even Apple were accused of collecting information on cell phone even after users opted out and turned off the spying/location whatever services.
Not as far fetched as some of you are dismissing this. We may be joking about the tin foil, but we really have very little privacy left.

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Josh Chace

10:42 pm on Saturday, December 8, 2012

This is where having too little information is a bad thing, Joe Gray. You have no definitive details on the subject but you're making wild accusations.

No company/software/hacker can "re-enable" tracking/webcam software on your phone/computer if it's powered off. Nothing can. No way. No how. If your computer/phone is getting no power, it will not operate.

Google was collecting WiFi SSiD information while their trucks were going around taking Google Map data. It has since been stopped. It is publicly available info, but they opted not to collect it.

Apple tracked location info from customers phones (a feature easily disabled by the end user) and wanted to use it for traffic crowdsourcing. Great rollout, bad presentation. It's also been fixed.

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Joe Gray

12:01 pm on Sunday, December 9, 2012

@Josh
if you're going to accuse me of low information, you had better go back and check your own lack of information first. Please read article to bet udated on industry capabilities:

http://www2.wsav.com/news/2012/nov/20/4/cell-phone-surveillance-tracking-your-every-move-ar-4987249/

Sick of this city

11:12 am on Saturday, December 8, 2012

Jason as a matter of fact he has changed his ways and is a wonderful asset to the community now. The point I was trying to get across was cops have been doing things all along that violate a persons rights w/no regard to the law. They didn't care that they were jeopardizing my sons life and families as well.

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Bill M

11:31 am on Saturday, December 8, 2012

Distractions distractions!!! Where are the real stories that are happening in this city? Trash bags...Ipads....c'mon patch will ya!!

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Daniel DeMaina

12:26 pm on Saturday, December 8, 2012

Bill, every Friday we post an article throughout our region asking for people's opinion on an important topic, such as a Supreme Judicial Court ruling, which I would hesitate to call a distraction. Nonetheless, there's plenty of other local news on your Patch—just visit the homepage, hit the "News" tab and scroll through.

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Chris Caesar

2:10 pm on Saturday, December 8, 2012

We've, of course, covered trash in the city pretty closely, including an article earlier this week. The use of iPads by the council may be news to some people but I don't think it's quite a scandal that city councillors are issued equipment to do their jobs.

david mokal

12:55 pm on Saturday, December 8, 2012

Yes distractions thats right! How many times is that guy gonna burn down the house on Freemont Street geesh that artical has been there for ages.

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david mokal

12:59 pm on Saturday, December 8, 2012

@ Josh.. LOL I use a metal strainer on my head to pick up frequencies..lol

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Steve

6:37 pm on Saturday, December 8, 2012

Like Jason said above, don't do anything to MAKE them want to look. It is quite simpl

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Diana

6:55 pm on Saturday, December 8, 2012

Because the police are your friends, and never arbitrarily bother anyone or attempt to overstep their authority.

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TMHSGrad

10:14 am on Sunday, December 9, 2012

"If you are not doing anything wrong, then you have nothing to worry about." That is the typical liberal response. Our rights are being slowly and systematically eroded, and we are letting it happen.

paul surette

6:49 pm on Saturday, December 8, 2012

To Mr. DeMaina....that argument ONLY works if you're stopped by police for 'suspicion' only,say. a traffic stop. If the policeman asks to or demands to search your vehicle, you have the right to refuse a search. The Supreme Court stated that the police need 'probable cause' to search a suspect's vehicle. Say, they see something criminal like a handgun, or drugs, etc. I was subjected to this behavior by a policeman in N.H. back 5 years ago. I refused to consent to a search. The policeman said it could 'go bad for me' if I refused the search. The idiot thought I would think that by refusing a consent to a search meant I was relinquishing my rights. I had to recite to him what the Supreme Court said about searches. "You stopped me for a traffic violation....so if you want to search my car, go get a warrant!" I left with a citation, AND my rights still intact. :)

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Daniel DeMaina

8:41 pm on Saturday, December 8, 2012

Mr. Surette ... I was just quoting a song for a moment of pop culture levity that alludes to the subject at hand, not actually making an argument. :) I think you mean to address Mr. Winslow. Regardless, thanks for the clarification and illuminating anecdote.

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Andrew Sylvia

2:22 am on Sunday, December 9, 2012

"I got 99 problems, but sauerkraut ain't one." - Jay Z

paul surette

6:55 pm on Saturday, December 8, 2012

To Andrew Sylvia, I'm trying to figure out how a can of Progresso soup and aurgula, have any bearing on a discussion about people's civil rights. Help me to understand, please!

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Andrew Sylvia

2:21 am on Sunday, December 9, 2012

Hey Paul,

On the sauerkraut/arugula, just responding to Bridget. On the Progresso Soup, just correcting someone up there who called it Progress Soup.

Personally, I prefer Campbell's to Progresso. What about you?

Jason

8:48 pm on Saturday, December 8, 2012

Love Arugula. With a nice goddess dressing...yummy.

If your so freaked out about your cell phone privacy, you have had to much Koolaid..and spent to much time with your head on the sand.....Have you heard of the NSA?

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SomervilleGirl

9:44 am on Sunday, December 9, 2012

Sick of this City is right. They have stripped our constitutional rights in the name of "safety", but who are they keeping safe? If they do have access to computers, cell phones, Facebook, they are not going to be telling you how they do it. Our technology is far advanced, but the military and police have more access than citizens. I only wish they would use this high-tech surveillance on the real bad guys and leave the innocent alone. Be careful what you write, it could be used against you someday. "absolute power corrupts".

As much as we believe there are many wonderful benefits to having these gadgets which help us with communication, it has also hurt our civilization in many unforeseen ways. I can appreciate those who say they will never use a cell phone or computer. Yes, we can think they are dinosaurs who subscribe to an era which has since died, but they may have a true understanding of freedom which many don't realize. So my question is this--while those keeping tabs on the rest of us, ARE COMMITTING CRIMES, who's watching them? It appears what is perceived to be "criminal", has become subjective. Their jobs just got easier--

http://translogic.aolautos.com/photos/gps-tracking-devices/#11714

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TMHSGrad

10:18 am on Sunday, December 9, 2012

Ben Franklin was very prescient on this matter - "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."

SomervilleGirl

10:22 am on Sunday, December 9, 2012

WE are not LETTING IT HAPPEN....ever since they created wars on the other side of the globe, while stripping natural resources of innocent nations--it's suddenly become a "terrorist-around-ever-corner", BS society. Look what they did to the people who were protesting on Wall Street? They are hired by corporations to ward off any inflated assembly--you know, like making them be accountable for the trillion dollar deficit we the taxpayers are now on the hook for--this is rampant and has been going on for years. With the millions of people broke and without jobs, they call it what they want and wish people to remain in fear. Believe what you want--if you remove your mind from the corporate run and paid mainstream media traitors, you will understand through unbiased networks on line, such as Democracy NOW, who tell it like it is.

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Joe Gray

12:10 pm on Sunday, December 9, 2012

In case anyone missed my earlier post. "They" can spy on your cell phone, even when it is turned off. Turning off that device isn't good enough anymore unless you yank the battery out. Others may be too young to know what is going on, but I remember and I'm going to spill about it every so often, even if others think I'm off the reservation. See article below about how they can get info from your turned off cell phone. The world has changed and a lot of critical information about what is going on is not common knowledge anymore(if it ever was).

http://www2.wsav.com/news/2012/nov/20/4/cell-phone-surveillance-tracking-your-every-move-ar-4987249/

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SomervilleGirl

12:21 pm on Sunday, December 9, 2012

For those of you still naive about the system--there are good and bad of all professions. You owe it to yourself and your family members to find out your rights and don't ever think that you can't ask questions. I'll share a quick story--my daughter was out driving at 3:00 a.m., and was pulled over for no reason. It happened just a few towns over. She was detained for over 40 minutes and was asked inappropriate questions. Luckily, she got home safe, but was upset by the incident. I made a phone call that week to someone I know within the system--one of the good guys because I felt as her parent, I had an obligation to report it. She was too afraid to file a report. I've learned other things over the years I am not at liberty to discuss involving people who have been "targeted" for whatever reason.

Just know your rights and find someone in the system who believes in our constitutional rights as citizens. Unfortunately, there are many people who won't ever challenge these situations out of fear or a disbelief they can't win, even when they are innocent.

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Joe Gray

12:27 pm on Sunday, December 9, 2012

More info, specifically about iPhone security, since it is the dominant cell phone in the U.S. right now. You don't know who is looking in your phone, let alone the police.

http://www.techweekeurope.co.uk/news/apple-iphone-security-spyphones-99085

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Amber B.

10:08 am on Monday, December 10, 2012

I'm not sure about the iPhone specifically, but with most phones, computers, SD cards, etc. even when you delete files the information it is recoverable. I used a Win-based software to recover pictures from my accidentally deleted SD card this way. Everything leaves a shadow which, when pulled up by someone who knows how, can be found/restored. I'm not even sure a factory reset erases this information entirely, though in order to get it, officials would at that point have to call in some specialists and would likely only put forth the effort if you were charged with something egregious warranting such intervention. In the most basic situations, a passcode which factory resets your phone is probably your safest bet. They can't compel you to give up your passcode.

Technology has made our lives easier, but also more of an open book to anyone with the knowledge to hack into it. Leave no trace is pretty impossible if you use technology - even without a smartphone, you;d have to live under a rock with no utilities, car, bank account, or debit/credit cards.

To answer the question - electronic data SHOULD be the same as hard copies locked in your file cabinet at home. Coulda, shoulda, woulda, though - and we all know why 'they' use the asisine "well, if are innocent you have nothing to hide" argument.

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Andrew Sylvia

10:29 am on Monday, December 10, 2012

Amber's right, the only way to be absolutely sure information is gone off a computer is to physically destroy the computer, but even then if a virus had copied the information or if you had placed it on the internet at some point, it could still exist.

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Mike G.

5:38 pm on Wednesday, December 12, 2012

The only way to truly protect your data is to use a product like TrueCrypt to encrypt your hard drive (or certain folders with sensitive data).

Once your data is encrypted, if the passkey is lost the data is unequivocally gone - no recovery possible.

But any person with the right equipment/software can get into your seized device even if it's powered off, no passcode needed.

Joe Gray

1:46 pm on Monday, December 10, 2012

Lately, I've decided to give in and live normally on the electronic "grid". Our society has become computerized to the point that you have to either live under a nondescript rock as Amber said or keep a wallet full of fake IDs and license plates.
The authorities are going to gradually give themselves more power to be more intrusive over time and we're simply going to talk ourselves into agreeing to less privacy. Maybe society is going full circle back to Adam and Eve, only digitally through our cell phones......

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paul surette

4:41 pm on Wednesday, December 12, 2012

Folks, there are very good programs out there (Windows.....screw Macs) that can eradicate EVERYTHING off of your hard drives! I've used them in the past. Even went and yanked out the hard drives to verify. :) Unfortunately, this is the world we live in now. Welcome to the wonderful world of technology.

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Mike G.

5:34 pm on Wednesday, December 12, 2012

Macs have the capability built into its OS..... no software needed :)

dd if=/dev/random of=/dev/sdb bs=1M

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Mike G.

5:42 pm on Wednesday, December 12, 2012

Oh, one more thing -- if you do use one of those programs (like Darik's Boot and Nuke or BCWipe) make sure you choose the DoD Wipe - overwrite every block with ones, zeroes and a random number... 7 times.

I've recovered data from hard drives that were wiped with just one pass. Not good enough.

paul surette

8:03 pm on Wednesday, December 12, 2012

Mike, I'm not much of a Mac guy, so I'll take your word for it

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Mike G.

1:31 am on Thursday, December 13, 2012

That goes for Linux/Unix as well.

Bob Cass

6:16 am on Thursday, December 13, 2012

Big Brother doesn't need permission to do anything. They can find out answers to their questions without you. They can tell where you've been in your car, by your phone, credit cards, etc. They know what you like to eat, what stores you like to go to. What movies you like. What TV channels you like to watch. How much money you have in the bank. Jeez how come if they all know this about us why can we know the same about people like the Koch Brothers?

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paul surette

2:28 pm on Thursday, December 13, 2012

Bob, do they also know who's wife I covet?

Joseph

12:17 pm on Thursday, December 13, 2012

If someone has an interaction with the police and they take your cell phone there must be a reason they take it. Don't sell drugs and I bet they don't search anything.

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