The California Supreme Court has handed down an important ruling that allows police to search an arrested person’s cellphone without a warrant — a ruling that will allow police access to a wide array of information now kept on modern cellphones.
The California Supreme Court based its decision on U.S. Supreme Court precedent allowing police to seize evidence found with an arrestee when taken into custody. In People v. Diaz, the California justices relied on the exception for searches “incident to arrest” under such cases as United States v. Robinson 414 U.S. 218, 224 (1973). Notably, the prosecutors acknowledged that Diaz had a valid “expectation of privacy” in the information under Katz. However, the court dismisses the importance of the item by analogizing it to clothing:
We hold that the cell phone was “immediately associated with [defendant’s] person” (Chadwick, supra, 433 U.S. at p. 15), and that the warrantless search of the cell phone therefore was valid. As the People explain, the cell phone “was an item [of personal property] on [defendant’s] person at the time of his arrest and during the administrative processing at the police station.” In this regard, it was like the clothing taken from [*14] the defendant in Edwards and the cigarette package taken from the defendant’s coat pocket in Robinson, and it was unlike the footlocker in Chadwick, which was separate from the defendants’ persons and was merely within the “area” of their ” ‘immediate control.’ ” (Chadwick, supra, 433 U.S. at p. 15.) Because the cell phone was immediately associated with defendant’s person, Fazio was “entitled to inspect” its contents without a warrant (Robinson, supra, 414 U.S. at p. 236) at the sheriff’s station 90 minutes after defendant’s arrest, whether or not an exigency existed.
It is certainly true that the Supreme Court has gradually expanded exceptions to the Fourth Amendment that has left more holes than cheese in the protection against unlawful searches and seizures. The majority ruling does follow this trend. However, there is little effort to distinguish this new technology in terms of its implications for privacy. While cellphones are not new, the latest devices are being used for a wide array of business and personal communications and information storage. The dissenting justices noted the range of information on these devices:
the amount and type of personal and business information that can be stored on a mobile phone, smartphone or handheld computer, and would become subject to delayed warrantless search under the majority holding, dwarfs that which can be carried on the person in a spatial container. 8 As one federal district court observed in suppressing the fruits of a mobile phone search, “modern cellular phones have the capacity for storing 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, email, 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 email and text, voice and instant messages.” (United States v. Park (N.D.Cal., May 23, 2007, No. CR 05-375 SI) 2007 U.S. Dist. LEXIS 40596, *21-*22, fn. omitted.) Smartphones, as we have seen, have even greater information storage capacities.
Justice Moreno concludes that
The majority’s holding, however, goes much further, apparently allowing 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.
I share those concerns. All that the dissenting justices wanted was for police to seek a simple warrant before searching such information. These warrants can be obtained literally in a matter of minutes in some circumstances but can certainly be secured in a short time. Unfortunately, this is not the Supreme Court that I would want to review this case. The Court has left the fourth amendment in tatters and this ruling is the natural extension of that trend. While the Framers wanted to require warrants for searches and seizures, the Court now allows the vast majority of searches and seizures to occur without warrants. As a result, the California Supreme Court would allow police to open cellphone files — the modern equivalent of letter and personal messages. For people insisting that the text of the Constitution must control their interpretations, it takes a lot to ignore the language of the fourth amendment:
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.
Source: SfGate
Jonathan Turley
What’s up everybody, here every one is sharing these knowledge, therefore it’s nice to read this blog, and I used to pay a visit this web site every day.
Good links Buddha!
Why you should always encrypt your smartphone
Your most dangerous possession? Your smartphone
File your taxes from your iPhone or Android phone
Oh yeah! What could possibly go wrong with that?
The problem is that the judge in California never addressed the issue of why searches incident to an arrest are legal; the judicial rulings rely on the fact that the evidence is destroyable, and/or a weapon could be there. The problem with searching digital devices is that once they are confiscated, it that is unclear whether evidence could be destroyed.
The precedent that the judge cited used to examine the correctness of the search as a “search incident to an arrest,” not needing a warrant, used what a friend of mine calls an NRA style quotation: “Right to bear arms, dot dot dot” ignoring the key point of the phrase.
The Judge here says “the key question in this case is whether defendant’s cell phone was “personal property… immediately associated with [his] person,”” citing Robinson. This betrays a lack of understanding of the underlying issue, when the Judge attempts to apply the ruling without understanding the reasoning behind it. To quote the rest of the paragraph that the judge somehow left out, “…and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.”
The judge cited the precedent from Robinson. This was a case where a suspect was arrested on suspicion of drug use, and was searched. The officer found a cigarette case, which did not seem to contain cigarettes. It had illegal drugs instead. The question there was whether the cigarette case was considered “personal property,” or if it was a new search requiring a warrant. The judge in Robinson ruled that once the search is warranted, the officer can notice that there is further evidence, and the search was warranted because he might have had a weapon.
So, was there any such danger in this case? None was referenced, and the judge didn’t seem to care. Robinson was brought as the precedent, but it’s essentially irrelevant; if you hearken back to the logic underlying the case law, you see clearly that “Personal property” is a heuristic to understand when the item may contain a weapon or be evidence likely to be destroyed. Taking an object out of a pocket, thinking it might be a weapon, even if it is only a cigarette case, is justified. Opening a cell phone’s texts messages would require different logic.
Now, why the judge’s ruling was correct anyways, in spirit if not in fact. Let’s take a hypothetical case; Bob is arrested for drug use. His android cell phone is taken from him, including notes that have been taken on the phone in Google Docs concerning the purchase of said drugs. When Bob calls his wife, Jane, she goes on his home computer, logs in to his Google Docs account, and deletes the notes. This means that because of the nature of digital devices, there is MORE reason to suspect that evidence could be destroyed.
So cell phones should be especially included in the exception to the requirement to have a warrant, unless and until the data on it can be locked from being changed. As a libertarian I don’t like it, but I think the Supreme Court is a bit more centrist in their judicial leanings than I am. (Wow. Never thought I would say that.)
Why the hell not…some criminal activity must be afoot or they wouldn’t have been arrested….right? I am only kidding….bad actors wear badges….
Good advice/tips, OS.
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Slightly OT, but an important story to follow. The corruption is high-level and pervasive, as I’ve said many times in the past.
We may quibble about certain definitions, but one thing is certain. What I’m witnessing in my work, and on the streets of America doesn’t bode well for this country of ours. The underpinnings are in place… Hyperbole? All I can do is tell the truth.
Pentagon lagged on pursuing porn cases Senator calls it risk to US security
By Bryan Bender Globe Staff / January 5, 2011
http://www.boston.com/news/nation/washington/articles/2011/01/05/pentagon_lagged_on_pursuing_porn_cases/?rss_id=Boston.com+–+Top+political+stories
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(Thanks for the Greenwald link, Jill.)
Al Cranston says, “Seems like only child molesters and terrorists would care who saw their web searches.”
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Actually, if I had a smart phone it would have sensitive client and business information in it that I am not allowed to share with anyone who does not have a legal right to know. That is why I carry a cell phone that makes calls in and out. It doesn’t even have a voicemail feature on it and I do not send text messages or tweets. If I lose it I will not worry about it and just get another one. If I had an iPhone or Droid and lost it, I would need a large supply of tranquilizers.
When traveling, I keep my informaiton on a very small flash drive or on discs, and not saved to the hard drive. Also, travel computer is a basic cheap laptop from Wal-Mart. If it is taken from me or lost, all the finder would have is a cheap computer with nothing on it.
A word to the wise. If you have a travel computer, never buy a used one. It could have deleted files on it that could be found easily with a forensic software search. For all one knows, a pre-owned computer could have kiddie porn on it, or worse.
appetites*
Al Crans.
So you are saying that the framers of the Constitution didn’t put the protection against unreasonable searches in the Constitution for the innocent?
Are you nuts?
If only child molesters and terrorists should be afraid of being discovered, then why did the founders/framers make sure that government couldn’t pry into the affairs of those who were not terrorists or molestors?
What is it they understood and you do not?
A whole heck of a lot it seems.
Denying government access to our papers and “effects” is in the Constitution to protect the innocent from government, not the other way around. It’s in there because government is abusive and always has been and the framers knew this.
The bonus the guilty reap thereby is a fine and awesome result of Anglo Saxon Law and the Rights of Englishmen which took nearly a thousand years to perfect.
You can easily see who is most dangerous in human societies (civilians or officials). For example, there are now authorized child molesters operating at the TSA. And congress is a state sponsor of terrorism because only Congress is responsible for letting in groups of individuals known to practice it. And these terrorists are used by government to GROW government and create a police-state. And only congress encourages terrorism by invading and occupying foreign lands against the will of their peoples.
This criminal activity by government (under the guise of law) is the very reason for the prohibitions put on government in the Constitution in the first place by those smart enough to know government is usually the biggest enemy of justice and needs more chains on its appitites than individuals.
This is Glenn Greenwald on the torture of an American citizen in late Dec. It’s worth reading as it discusses the issue in this post and other tactics of the Obama administration: http://www.salon.com/news/opinion/glenn_greenwald/
Tootie:
Seems like only child molesters and terrorists would care who saw their web searches.
Anyway the person has been arrested, if a criminal/terrorist is stupid enough to carry a cell phone that can give them up, why is that a problem?
And why is the left so concerned about it anyway? They trample individual rights on a daily basis.
Al Cranston
Good point. Problem is it’s more than names and addresses. It’s lots of data. In the case of fancy phones, it’s access to website searches and even GSP info (where you went, etc). This is the sort of info one might not be willing to surrender before one has been read his or her rights.
It gives the cops access to information that Miranda protects. I’m not saying I necessarily support Miranda, but I’m saying the government probably is inconsisent if it allows this while upholding Miranda.