I would agree with you if we’re talking about something like the ability to search a car, where the cop is not allowed to without the owner’s permission (assuming no probable cause or warrant). In that case the cop usually figures out a loophole to manufacture probable cause or manipulate the owner into agreeing to a search. And then there’s nothing a lawyer or judge can do later, because it’s the cop’s word vs yours.
But if we’re talking about a law that actually says the cop cannot take your phone no matter what, and they do, then any public defender would be able to point it out and the judge would certainly have to enforce it. I can’t think of a way the cop would abuse their power because, in this case they don’t have it.
I could be convinced based on the actual wording of the law, though.
alyaza@beehaw.org 2 months ago
they can abuse their power because they’re a cop, with a badge and gun, and the right to maim or literally kill you with it (and probably get away with it even if it’s not strictly legal) if you don’t comply with their demands in the moment. again: cops consistently do not care about or follow legal procedures they’re supposed to, frequently fuck up those procedures even when they *do, and most cops probably don’t even think of it as their job to secure some airtight case that stands up to legal scrutiny. it’s not a profession that lend itself to the kind of charitability that’s being given here, and the record of the profession has even less of a record deserving of that charitability.
alyaza@beehaw.org 2 months ago
basically, put it this way: if a cop stops you and asks you for your phone–what are you realistically going to do in that situation the moment they don’t respect your “no” and begin to pressure you, threaten you, and decide to throw the legal book at you (however dubious) for saying no? for most people, the answer is going to be “just give up the phone and start complying with the cop” even though that is not something the cop should be able to do. at the end of the day they have a gun, and can put you in jail (or at least make your day hellish) more-or-less unilaterally, with very little recourse for you unless you want to do expensive litigation.