California Supreme Court Allows Search of Data Stored on Mobile Phone without Warrant


By: Houston Criminal lawyer John Floyd and Paralegal Billy Sinclair

Early last year we posted a piece about the way federal prosecutors have increased their efforts to secure sensitive data from telecommunications companies about customers’ cell phone use. Prosecutors justified these individual privacy intrusions by saying it helps them trace the movements of drug dealers, human traffickers, and even corrupt politicians. Newsweek called the cell phone “The Snitch in Your Pocket” (March 1, 2010) as they reported about this new crime-fighting effort by federal authorities. And more recently we have reported on additional, more inventive ways the Government has found to intrude into the private lives of everyday, law-abiding citizens under the now incestuous wars of crime and terror (here and here).
And as they say on music radio, “the hits just keep on coming.”  Individual privacy took a major hit recently with a ruling by the California Supreme Court which held the a cell phone’s text messages can be searched without a warrant if its owner has been arrested, and that any incriminating evidence retrieved from it can properly be admitted into evidence at a criminal trial. The court’s ruling in the case of People v. Gregory Diaz essentially held that the warrantless search of a cell phone is “incident of a lawful arrest (See the dissent for good arguments for your motion to suppress). The facts of the Diaz case are these: In April 2007 he made a drug buy from a police informant. The buy was witnessed by a sheriff’s deputy with the Ventura County Sheriff’s Department. The deputy arrested Diaz and found six tablets of Ecstasy. Diaz was transported to a police station where a detective seized his cell phone. The detective subsequently found an incriminating text message on the cell phone which prompted Diaz to confess. He was charged with selling a controlled substance and he moved to suppress the incriminating evidence discovered on his cell phone. The trial court denied Diaz’s motion to suppress and the matter ended up before the California Supreme Court.
It has been a longstanding rule of constitutional law that searches conducted without a warrant are per se unreasonable. But the U.S. Supreme Court has carved out “established and well-delineated exceptions” to this rule. Two years ago we discussed the exceptions as they applied in vehicle searches.
The exception relied upon by the California Supreme Court in Diaz is a search conducted “incident to a lawful arrest” as defined by the U.S. Supreme Court in United States v. Robinson in 1973. The Robinson court held this exception “has traditionally been justified by the reasonableness of searching for weapons, instruments of escape, and evidence of a crime when a person is taken into official custody and lawfully detained.” The following year the U.S. Supreme Court in United States v. Edwards added further clarification to this rule by saying:

“When a custodial arrest is made, there is always some danger that the person arrested may seek to use a weapon, or that evidence may be concealed or destroyed. To safeguard himself and others, and to prevent the loss of evidence, it has been reasonable for the arresting officer to conduct a prompt, warrantless ‘search of the arrestee’s person and the area “within his immediate control” …’ Such searches may be conducted without a warrant, and they also may be made whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence. 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.”
In the Diaz case, the California Supreme Court had to find that Diaz’s cell phone was his personal property immediately associated with his arrest and its contents could be searched for evidence just as Diaz’s person and clothing could be searched without a warrant for evidence. While the court’s decision is disturbing for its impact on the traditional expectation of privacy, it is not necessarily a constitutional aberration. The online legal journal, theLegality, reported in 2008 that several federal circuits have held that warrantless searches of cell phones made “incident of a lawful arrest” do not pose a constitutional problem. One of the cases cited by this legal journal was United States v. Finley, a Fifth Circuit decision that while recognizing an individual expectation of privacy in his/her cell phone and text messages, nonetheless held that the search “incident of a lawful arrest” rule gives an arresting officer the same authority to search a cell phone as he would have to search a closed container near or on the person arrested.
theLegality journal cited an article, IPhone Meets The Fourth Amendment, by University of Houston Law Center professor Adam Gershowitz who said that by comparing cell phones to closed containers, the Fifth Circuit had effectively expanded the search “incident to a lawful arrest” rule to include the content of cell phones, pagers and PDAs. The Diaz decision bears out exactly what Professor Gershowitz predicted. But there were those at the time who didn’t think decisions like Finley supported a warrantless search of text messages. For example, George Washington University Law Professor Orin Kerr said that unlike phone numbers recorded in a cell phone or pager-signals that can be used to track a suspect, text messages contain “content” which should be accorded higher constitutional protections.
As a matter of fact, U.S. District Court Judge Susan Illston, Northern District of California, flatly disagreed with Finley, which started in Midland, Texas. She ruled that police do not have the authority to search a cell phone under the “incident to a lawful arrest” rule. Judge Illston found that, “unlike the Finley court, that for purposes of Fourth Amendment analysis, cellular phones should be considered ‘possessions with an arrestee’s immediate control’ and not part of ‘the person.’ This is so because modern cellular phones have the capacity for strong immense amounts of private information.
“Unlike pagers or address books, modern cell phones record incoming and outgoing calls, and can also contain address books, calendars, voice and text messages, e-mail, video and pictures. Individuals can store highly personal information on their cell phones, and can record their most private thoughts and conversations on their cell phones through e-mail and test, voice and instant messages.
“Any contrary holding could have far-reaching consequences. At the hearing, the government asserted that, although the officers here limited their searches to the phones’ address books, the officers could have searched any information—such as e-mails or messages—stored in the cell phones.
“In addition, in recognition of the fact that the line between cell phones and personal computers has grown increasingly blurry, the government also asserted that officers could lawfully seize and search an arrestee’s laptop computer as a warrantless search incident to arrest.
“The searches at issue here go far beyond the original rationales for searches incident to arrest, which were to remove weapons to ensure the safety of officers and bystanders, and the need to prevent concealment or destruction of evidence. Inspector Martinovich stated that he initiated the searches because ‘evidence of marijuana trafficking and/or cultivation might be found in each of the cellular phones.
“Officers did not search the phones out of a concern for officer safety, or to prevent the concealment or destruction of evidence. Instead, the purpose was purely investigatory. Once the officers lawfully seized defendants’ cellular phones, officers could have sought a warrant to search the contents of the cellular phones.
“The court finds that the government has not met its burden to show, by a preponderance of the evidence, that it is standard police practice to search the contents of a cellular phone as part of the booking process. Indeed, the government has not articulated any reason why it is necessary to search the contents of a cell phone in order to fulfill any of the legitimate governmental interests served by a book search; namely, to deter theft of arrestees’ property and false claims of theft by arrestees, and to identify contraband and other items.”
We agree with Judge Illston—and perhaps her reasoning will ultimately prevail in the U.S. Supreme Court which, two years ago in Arizona v. Gant, said the search incident to a lawful arrest rule “does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle.”  The court made it clear to the lower courts that it would no longer tolerate the “broad interpretations” they have previously attached to these kinds of searches.
We believe the Gant vehicle search rule should be applied to cell phones. Once the owner of the cell phone is in lawful custody, he/she no longer poses any risk to destroy any “evidence” the cell phone may contain. Arresting officers should be required to procure a search warrant before searching the cell phone if they have probable cause to believe it has been used in the commission of a crime or contains evidence of criminal wrongdoing—just as they are required to procure a warrant to search a vehicle whose owner is detained in lawful custody.
theLegality law journal clearly did not see Diaz coming down the legal pipeline as evidenced by their observation: “As it becomes easier to utilize technology, the balance between government interests and individual privacy becomes harder to navigate. The situation may be less dire or alarming than many stories suggest, but the fact remains: as our access to information grows in speed and scope, the avenues a government actor has to reach evidence grows right along with it. Nowhere is that more true than during an arrest: if Fourth Amendment jurisprudence follows the Court of Appeals of the Fifth Circuit in viewing phones and other digital devices akin to Tupperware stash boxes, an officer engaged in an otherwise lawful arrest could potentially browse a driver’s text messages without fear of violating constitutional protections … it’s a thought-provoking idea nonetheless—one that brings into clear relief the questions raised as personal digital technology and the Fourth Amendment continue to cross paths.”
We believe that the Diaz decision is just another manifestation that the individual expectation of privacy in this country is becoming a sacrificial lamb, butchered by the government’s unrelenting “wars” of everything from terror to obesity. While Republicans and tea party activists stand in the rain like idiots shouting about the Government’s “socialist control” of health care, the government is steadily, and not so subtly, taking away the right to privacy, the right to petition the government for redress, the right to peacefully assemble free of government surveillance, the right to practice whatever religious faith we’re most comfortable with, and to speak freely about whatever we please. We were not kidding when we said “Big Brother” is watching!