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
“The Moar You Know” wrote:
“…but your point is dead on: they’re all doing it, they are all complicit, and we’d better figure this out quick as we’re already well down the path to a police state.
What I’m afraid of is that most Americans don’t seem too perturbed by the possibility of this nation becoming a police state. Hope I’m wrong about that.”
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I couldn’t have said it any better.
Oh and.
Ever see the movie Shooter?
The reason why movies like Shooter are prophetic is because you cannot have arrived to or present totalitarian police-state without millions of active “law enforcement” officials who are not already completely and totally morally bankrupt.
http://www.imdb.com/title/tt0822854/
Jill:
“Liberals need to be honest about Democratic involvement in the police state. They work with Republicans on this, not in opposition to them (with few exceptions).”
“Libertarians need to realize it isn’t just the govt. who can take away your rights, corporations are completely capable of doing so and are doing it as I write.”
You win the prize. I complain bitterly above, with good reason, about how Americans really didn’t give a shit about their rights until a Democrat took office, but your point is dead on: they’re all doing it, they are all complicit, and we’d better figure this out quick as we’re already well down the path to a police state.
What I’m afraid of is that most Americans don’t seem too perturbed by the possibility of this nation becoming a police state. Hope I’m wrong about that.
And then there are passive and active RFID tags…
What government, corporations, law enforcement, fusion centers, etc. want is unfettered access, with no oversight. And for now, they seem to have just what they want.
Was is Brandeis who said, “If history has taught us anything, it’s that we cannot trust our future to the good men (and women) in blue?”
Jill, frank, and others.
It is indeed a police-state now. That is why the DHS and fusion centers must be abolished. The Department of Homeland Security is the proto-gestapo. Fusion centers spy centers on us! (not terrorists).
If we try to abolish them the feds will orchestrate a man-made catastrophes to prove we cannot live without them.
ANOTHER LONE GUNMAN SCENARIO
I’m of the opinion that the recent shooting of the woman cop was government sponsored. Cops know they are being exposed for being worse criminals than citizens and so the government finds a bad guy pretends HE shoots the cops (but govermnent does it). But the alleged criminal is already dead before the government guy shoots the cop then runs from the scene.
This is what happened with Timothy McVeigh. Only the government has protected former Iraqi intelligence officers. How else can they create a police state if you are not terrorized by the people they let into the country? Or if you are not terrorized by them.
You must remember this always. It is government which was the biggest mass murderer of innocent civilians last century: not individual wackos. Government officials don’t want you remember this. They want you to think YOU are the danger, not them.
If the police-state is here all “crimes” in which the perp ends up dead by cops (and out of sight of witnesses has to be considered having been done by the government and suspect.
Don’t be afraid of them.
They are out for money (job security) and power. They are the fire men who burn down buildings in order to insure a future career opportunity for themselves.
Remember, the only people letting terrorists into the country is Washington D.C. (and the ACLU who hounds officials for profiliing.
In other words terrorism is a government sponsored activity in America–sponsored by Congress and the Department of Homeland security. No doubt the CIA is involved.
Before this happened I’ve thought about getting rid of my cell phone. I’m tried of being so available. We lived for millenia without them. I lived most of my life without them. Perhaps we should make the cell phone companies afraid that they will lose customers. It might get them off their duffs to help us battle the despots in government who cannot seem to live out the day without worrying someone somewhere might be living in freedom without their knowledge.
“Your digital camera may embed metadata into photographs with the camera’s serial number or your location. Your printer may be incorporating a secret code on every page it prints which could be used to identify the printer and potentially the person who used it. If Apple puts a particularly creepy patent it has recently applied for into use, you can look forward to a day when your iPhone may record your voice, take a picture of your location, record your heartbeat, and send that information back to the mothership.
This is traitorware: devices that act behind your back to betray your privacy.” (eff.org)
This govt. sees its own people as: 1. a cash cow and 2. the enemy. These visions are completely intertwined. The amount of money to be made by collecting and selling personal data is enormous. Everything to do with the “war on terror” rakes in money. Which explains how we are cash cows to the public/private entity known as the govt.
We are not enemies because we are “terrorists”, (although that is the constant rational for usurping our rights), we are the enemy because we could stop their money/power grab. At least the “terrists” won’t hate us for our freedoms! We gave those up. So let’s take them back. To do so liberals and Libertarians need to face up to certain realities. Liberals need to be honest about Democratic involvement in the police state. They work with Republicans on this, not in opposition to them (with few exceptions). Libertarians need to realize it isn’t just the govt. who can take away your rights, corporations are completely capable of doing so and are doing it as I write. We are in the midst of corporatized state, not one or the other, but both, together. There are a few individual solutions but the real solutions will come from peaceful collective action.
The EFF has some individual solutions and important information on rights violations by both the govt. and corporations:
This is an especially troubling case in light of the amount of traffic on these phones, especially the so-called smart phones. I would think that Justice Scalia, being a true originalist, would have find for the phone owner because the information on the phone has to considered an “effect” or “papers” under the 4th amendment, as Professor Turley hinted at. Unfortunately, I agree with Frank that the originalists will find a way to excuse this obvious violation of the 4th amendment.
Added for clarification. The reason I asked what’s a ‘paper’ is that, to me, the form of the document is incidental. It doesn’t matter one bit if it’s on a piece of pulped wood, my computer’s hard disk, in a database off in the cloud, on a smart phone, etc. Al that matters is that it’s in a tangible form somewhere.
This isn’t some idle thought either. Under current copyright a creative work is copyrighted the instant it is written in tangible form. That includes hard disks. That’s why websites with user-provided content have so much legalize – without explicit permission a site can’t show someone’s comments (including this one). It can’t even store the comments in its database.
Chris mentions “gray areas”… From my vantage point, there aren’t any gray areas anymore. Nothing is off-limits: not your car or your home, not your safety deposit box… They don’t need a warrant — they don’t need anything, but the say-so of someone with power and, sometimes, a grudge. Forget about filing a complaint, because you won’t get any assistance. That’s the way it works…
Also I’m glad to see that Americans are finally taking the threats to their personal freedom seriously now that we have a black president.
It wasn’t like the guy who ran the country eight years beforehand, nor the Renqusition that was dismantling our freedoms for twenty years before now, had anything to do with it.
Jill
January 4, 2011 at 10:50 am
“This is definitely a police state.”
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Jill is oh so very right… The truth of it still sounds pretty unbelievable to some, but the situation is quite dire. No exaggeration. NSLs, high-tech gadgets, unchecked power/s, citizen “spies”…, private-contractors… and the list goes on…
What are ‘papers’?
Can the police search a briefcase? A locked briefcase?
More precisely I know they can search a briefcase (esp. an unlocked one) for weapons. But can they charge somebody if they find a joint in the briefcase? Can they read the papers? Can they COPY the papers?
(And remember that the issue with cell phones isn’t just that they can see the files, it’s that they can copy them without leaving a trace.)
I also find it interesting in light of a Colorado Supreme Court ruling a few years back that the contents of a backpack in a car was not in ‘plain sight’. I can’t remember if the backpack was in the back seat of the car (and visible through the window or anyone checking the interior of the car) or in the locked trunk.
The point is that I wonder where the line is drawn on “person”. I know cars are in a gray area – in some ways it’s like a house (e.g., it’s trespassing if someone reaches into your car without permission) but in other ways its far easier for the cops to search without a warrant.
“These electronic searches will eventually come to TSA checkpoints too.”
@ Puzzling:
Already here. And Customs can seize your laptop, keep it, image it, and search it for as long as they like and there’s not a damn thing you can do about it.
Of course, giving up your fourth amendment rights is worth it to catch pedophiles and terrorists, am I right?
This is definitely a police state. The ACLU has a chart on information gathering by both public and private entities. I can’t remember the name of this, but the FBI can just say they need your information and get what they want without a warrant or even a NSL. The person receiving the request is not allowed to speak of it. Here’s the chart info at this link: http://www.aclu.org/blog/technology-and-liberty/single-greatest-chart-ever-least-if-you-want-know-where-your-personal-in
The “Police State” no longer looms on the horizon threatening to replace representative government … it has done so …
I guess to ‘strict constructionist’ jurists there is only one true amendment to the constitution, the second. All others appear to be open for debate, interpretation and modification.
It seems like someone could come up with an App that would read the user’s fingerprint and unlock the device. Modern touchscreens have a lot of resolution, making such an App possible.
If the PDA is password protected, are you required to disclose it to the government in the same way you can be ordered to give blood at a DUI stop?
Buy strong encryption and use it. These electronic searches will eventually come to TSA checkpoints too.
Glad I don’t live in California!!!!!!!!!!