It brings up an interesting question: if wiping your phone after being requested access to it is illegal (?), would wiping your phone in anticipation of access being requested also illegal? Are we effectively required to give the federal government access to every private account in order to travel?
Your linked source only applies to civil matters (think lawsuits for a slip and fall). It even says:
Under Federal Rules of Civil Procedure Rule 37
That basically arises out of the Fifth Amendment, which reads:
No person shall . . . be deprived of life, liberty, or property, without due process of law
In the criminal conrext, the Fourth Amendment rules, which reads:
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.
All that “probable cause”, “stop and frisk”, and “reasonable suspicion of wrongdoing” stuff arises from the “unreasonable searches and seizures” bit.
As long as you aren’t doing it during an active investigation, no it wouldn’t be illegal. That’s the problem. Guy thought he was sneaky, and got busted. If you come in to investigate and suddenly you are deleting all the records, you are going to have a serious problem.
In the regular world, you can delete something to keep the cops from knowing about it as long as it’s not covering up a crime. You won’t find a charge of “destruction of evidence” without an investigation of an explicit crime with probable cause.
If they had probable cause to search his phone, they would have used it when he was in Georgia, not waited for him at the airport where he had fewer rights.
It brings up an interesting question: if wiping your phone after being requested access to it is illegal (?), would wiping your phone in anticipation of access being requested also illegal? Are we effectively required to give the federal government access to every private account in order to travel?
My understanding is that if you knew a search was going to happen, it’s illegal. But good luck proving that you knew it would happen.
I think you might be thinking of spoilation–https://civilprocedure.uslegal.com/discovery/spoliation-of-evidence/ --which is destroying evidence you think might be subpoened. I don’t think it would apply in this scenario.
Your linked source only applies to civil matters (think lawsuits for a slip and fall). It even says:
That basically arises out of the Fifth Amendment, which reads:
In the criminal conrext, the Fourth Amendment rules, which reads:
All that “probable cause”, “stop and frisk”, and “reasonable suspicion of wrongdoing” stuff arises from the “unreasonable searches and seizures” bit.
Yes.
This was a custodial search by a police force, so civil procedure doesn’t apply.
Correct.
As long as you aren’t doing it during an active investigation, no it wouldn’t be illegal. That’s the problem. Guy thought he was sneaky, and got busted. If you come in to investigate and suddenly you are deleting all the records, you are going to have a serious problem.
In the regular world, you can delete something to keep the cops from knowing about it as long as it’s not covering up a crime. You won’t find a charge of “destruction of evidence” without an investigation of an explicit crime with probable cause.
If they had probable cause to search his phone, they would have used it when he was in Georgia, not waited for him at the airport where he had fewer rights.