California Supreme Court Allows Warrantless Cell Phone Searches Incident to Arrest

May 11, 2011

Earlier this year, the California Supreme Court ruled that police officers may conduct warrantless searches of cell phones and other mobile electronic devices found on the person of someone who has been laiPhonewfully arrested.  The opinion, People v. Diaz, 51 Cal. 4th 84, 101 (Cal. 2011), demonstrates a split in how states interpret Supreme Court precedent regarding Fourth Amendment, and its protections against unlawful searches.  The implications of this ruling are far reaching and the division between the states’ interpretations of the Constitution warrants a review of this issue by the United States Supreme Court.

In 2007, Gregory Diaz was arrested for trying to sell ecstasy to a police informant.  After his arrest, his cell phone was confiscated and his text messages were later accessed and reviewed by officers at the police station.  One of these text messages read: “6 4 80.”  This message was used as evidence at trial to prove that Diaz was offering to sell 6 pills for $80.  Diaz argued that the warrantless search of his cell phone violated his 4th Amendment rights.  The State argued that the warrantless search of was valid as a search incident to Diaz’s lawful arrest.

Focusing on the fact that the cell phone was found on Diaz’s person, the California Supreme Court held that once somebody is arrested, they give up a certain level of privacy and “this loss of privacy allows police not only to seize anything of importance they find on the arrestee’s body … but also to open and examine what they find.”  However, the precedents relied upon by the court were decided more than 30 years ago – long before the advent of cell phones or other personal electronic devices which contain, or have access to, vast amounts of personal information and communications.  Indeed, the California Supreme Court’s comparisons of a cell phone to pockets in clothing or a cigarette package do not hold, as modern phones and electronic devices can store years’ worth of personal information and are a far cry from drugs hidden in a cigarette case or clothes pockets.  Moreover, as the California Supreme Court recognized in its opinion, the justification behind the “search incident to arrest” exception to the Fourth Amendment is that the “potential dangers lurking in all custodial arrests make warrantless searches of items within the ‘immediate control’ area reasonable without requiring the arresting officer to calculate the probability that weapons or destructible evidence may be involved.”  United States v. Chadwick, 433 U.S. 1, 14-15 (1977) (emphasis added).  Neither of those circumstances existed in this case, as the cell phone had already been confiscated and secured by the police.

As pointed out by the two dissenting justices, Justices Kathryn Mickle Werdegar and Carlos Moreno, the majority’s decision allows police “carte blanche, with no showing of exigency, to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee’s person. The majority thus sanctions a highly intrusive and unjustified type of search, one meeting neither the warrant requirement nor the reasonableness requirement of the Fourth Amendment to the United States Constitution.”  Unlike the majority, the dissent drew a distinction between cell phones (and other mobile electronic devices) and more traditional possessions and effects found on a person, stating:  “[t]he potential intrusion on informational privacy involved in a police search of a person’s mobile phone, smartphone or handheld computer is unique among searches of an arrestee’s person and effects….”

The dissent went on to argue that cell phones and other mobile electronic devices are unlike any other object that might be found on a person; stating: “[a] contemporary smartphone can hold hundreds or thousands of messages, photographs, videos, maps, contacts, financial records, memoranda and other documents, as well as records of the user’s telephone calls and Web browsing.”  Given the breadth and private nature of the information contained on these devices, the dissent would reasonably require the police to first obtain a warrant before the information is accessed.  They argued that, absent exigent circumstances, only upon a determination (by a judge) that the cell phone might contain relevant or incriminating evidence should an officer be permitted to search an arrestee’s cell phone under the Fourth Amendment.

The two dissenting justices are not alone in their construction of the Fourth Amendment’s search and seizure protections.  Indeed, the Ohio Supreme Court also voiced these privacy concerns in its recent decision preventing warrantless cell phone searches in the absence of exigent circumstances.  In State v. Smith, 920 N.E.2d 949, 955, (Ohio 2009), the Ohio Supreme Court reasoned that “because a person has a high expectation of privacy in a cell phone’s contents,” after seizing a cell phone from an arrestee’s person, a police officer “must . . . obtain a warrant before intruding into the phone’s contents.”  Distinguishing cell phone searches from other “container” searches in U.S. Supreme Court precedent, the Ohio court’s focus was on the extent of the arrestee’s expectation of privacy.  As such, in Ohio, unlike in California, a warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law enforcement officers and there are no exigent circumstances.

The State of Ohio sought review of Smith by the U.S. Supreme Court, but the nation’s high court denied certiorari.  However, the California Supreme Court’s recent opinion in Diaz demonstrates a split in the states’ application of the Fourth Amendment, and could cause the U.S. Supreme Court to reconsider whether it will decide this issue.

The U.S. Supreme Court has never ruled on police searches of cell phones; so it is unclear how the issue would be decided.  In June, the Court ruled that a police department did not violate an officer’s privacy when it read text messages he had sent on a department-owned pager.  Additionally, the Court has previously allowed officers to examine the contents of arrestees’ wallets without a warrant.  However, there is a fundamental difference between the reasonable privacy expectations of government employees for communications on devices provided to them by the state, and an individual’s reasonable privacy expectations for their personal communications on privately owned devices. Additionally, as explained by the Ohio Supreme Court and the dissent in Diaz, the nature and extent of the information contained on cell phones and personal computers prevents a reasonable comparison between a search of such devices and a search of an arrestee’s wallet or similar container.

Moreover, allowing cell phones to be searched arguably flies in the face of established law which prohibits the warrantless search of luggage and briefcases by police, other than a quick search for weapons.  Indeed, even the Diaz decision cites to the U.S. Supreme Court decision in Chadwick for the rule that “warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the ‘search is remote in time or place from the arrest,’ or no exigency exists.”  Chadwick, 433 U.S. at 15.  The California Supreme Court distinguished these cases by holding that, unlike luggage or briefcases which are considered “possessions within an arrestee’s immediate control,” Diaz’ cell phone was “personal property…immediately associated with [his] person” and was therefore not protected by these rulings.  However, given the nature and extent of the personal information contained on mobile electronic devices, a comparison to personal luggage or a briefcase would seem much more appropriate than the Diaz court’s comparison to a clothes pocket or package of cigarettes.

Finally, the Diaz opinion is unsettling due to the breadth of its possible applications.  The Supreme Court has ruled that police have broad authority to arrest people for even trivial infractions (such as failure to wear a seat belt); as such, the California rule gives law enforcement officers broad discretion to transform a routine traffic stop into a highly intrusive mining of a person’s personal information.  There is no need to allow for such an invasion.  As the Smith court discussed, by confiscating the arrestee’s cell phone the officer has done everything necessary to collect and preserve any information that it contains.  Absent exigent circumstances – such as the often mentioned but rarely encountered “ticking time-bomb” scenario – there is no immediate need to access the arrestee’s private digital information.  Certainly, if the police have such justification (exigent circumstances) then it may be proper to carve out an exception to the rule requiring a search warrant; just as there is for a “hot pursuit” warrantless entry into a residence or building.  But this should be the exception – not the rule.  And any such exception should be narrowly construed and limited in its application.  I am certainly not proposing that this information should be off-limits from a police investigation, just that there are procedures that should be followed before it is accessed.  The police must simply first justify the search and obtain a warrant from a judge.

These days, many people carry their lives on personal electronic devices.  The easily accessible nature of the private information contained in these devices requires a certain level of protection.  The Fourth Amendment’s requirement that police officers obtain search warrants is intended to provide that protection by balancing individual privacy rights with law enforcement’s need to investigate crimes and protect the public.  The California Supreme Court’s recent decision in Diaz creates an imbalance – tilting the scales toward arbitrary and unnecessary violations of freedom.

Photo Credit: Yutaka Tsutano

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