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
“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.” -Jonathan Turley
“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.”
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It seems pretty simple. They should be required to get a warrant.
No big deal? I think it is.
Rights, typically, aren’t lost all at once. They’re taken away slowly, one by one.
Encryption won’t necessarily save you. There are several ways around this for the govt. Here is one: ” Alternatively, a prosecutor may ask a judge to order you to turn over your password. The law is unclear on whether such an order would be valid, but that is a matter to face with the assistance of counsel. No one other than a judge can force you to reveal your password.” (EFF.org)
Tootie
1, January 4, 2011 at 7:31 pm
mespo
Obama just likely wants gays to stop bugging him so he can get on to the real business of subversion, sedition, usurpation, and overthrow …..
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What’s he overthrowing … besides the hoop …
BIL:
Niven was a wonderful master of the ad lib with aplomb:
Anon nurse, never mind, I had about 5 windows opened and was working on getting supper set up for the better half and myself. I suffered from momentary brain overload and totally confused myself. 🙂
Thank god cell phones weren’t around when I was a young woman … I shudder to think of trouble I might have gotten myself into …
mespo
Obama just likely wants gays to stop bugging him so he can get on to the real business of subversion, sedition, usurpation, and overthrow. The little bones he throws is to keep the kiddies passified.
I see you are easily distracted.
Here’s my rule for picture taking: Never take let a digital picture get taken that you wouldn’t be o.k. with being put up on the internet.
Some people crave the exposure.
Doh! He’s got ya there, Tootles!
Tootie:
Tell me if every act which you view as contrary to the Constitution means we are heading for a totalitarian hell, why doesn’t it likewise mean that every act in furtherance of human rights –like repealing DADT – means we are heading to an individual rights nirvana?
mespo,
Thanks for the laugh! I had forgotten about that incident. I always liked David Niven. A portrait of grace under pressure.
But that fiend Farve is on his own!
mespo:
It’s about death by a thousand cuts. It’s the proverbial boiling of the frog, from cool water, to tepid, to warm, then boiling. It’s about the steady–bit by bit–accumulation of massive brutal police power.
Slowly, then trotting, now racing.
It doesn’t reverse itself unless those in charge realize their error (unlikely as power corrupts).
This is about courts, judges, and lawyers especially who don’t know nor understand the history of arbitrary power. Lawyers are expecially culpable because they favor the Democrats and it is the Democrats who were the last best hope to stop the rise of the police-state. They’ve now become a part of it. This is because it brings them wealth and power. And like I said, power corrupts. It also murders on a mass scale.
It is about trampling the Constitution and provoking a Constitutional crisis or the rebellion needed to stop it in order to bring out the tanks against the people (what the gestapo really wants to prove the necessity of their existence).
The militarized police-state (set in place already but would like the convenience of never needing a warrent for anything) needs to prove its existence. That proof would be an unrising by loyal citizens against their police-state abuses.
This is about the stealth standing-army forbidden by the Constitution having grown up all around us using the perennial and bogus excuse of “security”. It’s about tanks owned by our local police. It’s about government causing violence to scare us into believing we need more police and more surveillance more militarizaion of the locals.
There must be a force capable of stopping the military (which opposes Obama and he knows it). That force is a militarized, armed gestapo (FBI, NSA, Fusion Centers, DHS, and local police more loyal to the president and the executive branch through unions (money and job security being the primary motivation for their criminal usurpations)than to the people.
While the military is safely secured out of country the presiden fakes a cozy relationship with it. What he needs is them distracted and cut off from the government. He needs them stranded thousands and thousands of miles away.
This is a very old story of how dictators do things. Whether he gets away with, I do not know. But the warning signs, and moreover, the totalitarian apparatus, is all now in place. The minute you buy into what I am saying you will go on a list too.
“If you have data you don’t want the police to see under any circumstance, encrypt it.
And for the sake of all that’s holy! Quit using your cell phones to take naked pictures of yourself and loved ones!” (Buddha)
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Or do like I do … stick with your old “flip” phone … and return every fancy, new-fangled phone your son-in-law buys you to the store and apply the money towards your cell phone bill. (Mine is paid up for the next 6 months!)
BIL:
“And for the sake of all that’s holy! Quit using your cell phones to take naked pictures of yourself and loved ones!”
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Enough of your libels against Brett Farve. In the words of David Niven “… that was almost bound to happen, and isn’t it fascinating to think that probably the only laugh that man will ever get in his life is by stripping off and showing his shortcomings.”
BBB,
What Blouise said. Going against the grain is never a problem . . . so long as you can back it up and like a challenge. 😉
BBB,
Hey man, we’re not made of velvet … go against the grain all you want.
What mespo said.
It may be a blow to 4th Amendment rights but not a shattering blow. The solution to the problem is common sense. If you have data you don’t want the police to see under any circumstance, encrypt it.
And for the sake of all that’s holy! Quit using your cell phones to take naked pictures of yourself and loved ones!
Lottakatz,
“… the best thing a citizen has going for him/her is anonymity …”
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My brother, now deceased, started his adult career in military intelligence in Nam and then matriculated (so to speak) to 2 different “spy’ agencies.
He used to lecture me on that very point … constantly.
BBB:
“… but decided that I go against the grain enough already.”
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Since you support your “orneriness” so well, it makes you interesting. 😀
BBB,
I have inquired previously, are you a lawyer?
Yes
No
Aint none of your cotton-pickin’ business
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Or are you a just a legalistic gadfly?