Even though you aren’t likely to be arrested anytime soon, a recent California Supreme Court decision may cause you to rethink where you carry your cell phone in the event you encounter police. The Court’s recent decision in People v. Diaz broadened the Fourth Amendment’s warrantless search exception to allow an arresting officer to search the content of an arrestee’s cell phone if it is found on the arrestee’s person. And, the search doesn’t have to be conducted at the time of the arrest; the search can be postponed until after the arrestee is safe and secure at the station. The lesson, at least at this juncture: don’t keep your cell phone in your pocket and make sure it is password protected.
In Diaz, the police seized defendant’s cell phone while he was at the sheriff’s station following his arrest for a drug deal. Ninety minutes after being arrested, the police searched the contents of defendant’s phone and found an incriminating text message that resulted in the defendant’s admission that he participated in the drug deal. Note that the police manipulated the defendant’s phone (exactly how was not clarified) to find the message. The California Supreme Court affirmed both lower courts’ decisions that seizure and search of the contents of the cell phone was valid under the Fourth Amendment.
The Court reasoned that because the phone was immediately associated with the defendant’s person, the police were entitled to not just seize the phone, but to inspect its contents as well. The Court paid little heed to the phone being searched 90 minutes after defendant’s arrest and after the phone had been seized. Nor did concerns for exigency (i.e. destruction of evidence or the threat of a weapon that could be used against the police) appear to have been a factor in the Court’s decision. Lastly, the Court paid little heed to the character of device (that it was a cell phone) or the sheer quantity of personal information that could be (and likely was) contained within the device. Rather, the decision hinged on three U.S. Supreme Court cases from the early 1970’s – when rotary phones were “modern technology” and answering machines were not even a household item. United States v. Robinson, 414 U.S. 218, 224 (1973); United States v. Edwards, 415 U.S. 800, 802-803 (1974); and United States v. Chadwick, 433 U.S. 1, 14-15 (1977).
The dissent noted these technological distinctions and stated: “The potential impairment to privacy if arrestees’ mobile phones and handheld computers are treated like clothing or cigarette packages, fully searchable without probable cause or a warrant, is correspondingly great.” See top of Page 25 here. There is a large amount of data that can be stored on a smart phone, which won’t be decreasing anytime soon. Moreover, the dissent argued that the grounds for a loss of privacy rights in the person do not apply to that person’s privacy interest in data – personal or business – stored on their electronic devices; privacy of data stored on a device is distinct from the person of the arrestee.
A notable concern that arises from the Diaz holding: in the days of wireless communication, are there any foreseeable limits to this warrantless search exception? I’ll note again, for the overly concerned reader, that the majority of us will never be arrested. But, in those random and rare circumstances where you are arrested for having too many unpaid parking tickets, failing to wear your seatbelt or some equally bizarre situation, should your cell phone or small computer be seized and searched without a warrant following a lawful arrest, what are the limitations? What private information can be obtained from it and ultimately used against you? And, what if it’s a phone or computer issued by your employer? Is the employer’s information subject to police whims? At least for the time, perhaps it’s better to keep your phone in your glove box or brief case and always keep it password protected.Tags: Discovery, e-discovery, e-discovery software, records management