CA Legislators Seek to End Warrantless Cell Phone Searches

As you may recall, I wrote about warrantless cell phone searched HERE after reading about the People v. Diaz, which held that information in cell phones may be searched without a warrant or other judicial supervision.

As I said before, the Administration of Justice major in me thinks the practice is a quick way to get information to use against the suspect.  As an investigatory practice, it sounds expedient but the Constitutionalist in me says STOP!  What's the rush?  Go get a warrant. 

There is a push from the California Senate and supported by the Assembly to protect against warrantless electronic searches.  Senate Bill 914, sponsored by Mark Leno (D) authored the proposed law.  I think this marks the first time I have agreed with any bill proposed by Leno, someone I consider a far-left liberal.   

Giving me some "conservative comfort", the bill will not hamper officers under exigent circumstances such as when safety is threatened or destruction of data is imminent.

The California Supreme Court ruled on January 3, 2011 that police may search the files and data stored on the cell phones of suspects who are arrested without having to obtain a warrant.  The Court likened cell phones to an article of clothing. 

The OC Register Editorial Board said on January 12, 2011:

It is archaic and short-sighted to liken cell phones to an article of clothing or a wallet; they are more akin to minicomputers, often containing extensive, intimate personal and professional data. Applications on phones store financial information, bank records and passwords, not to mention personal e-mails, photos and text messages. Giving police offers undue power to seize and peruse cell phones without a warrant is a threat to fundamental rights.

As shocked as I am that I agree with Leno's bill, I am glad to see it moving forward.  There was some language in the original bill which created a basis for the State to reimburse local agencies for State-mandated costs.  That was removed and the current version is clean and clear. 



"Warrant?  Is this guy for real?  I don't need a

warrant to search his camera.  Oops!  I accidentally

destroyed the FILM in the camera.  Sorry."



The law will protect against warrantless searches of ALL portable electronic devices that are capable of creating, receiving, accessing, or storing electronic data or communications.  That means, at least to me, that officers will need warrants to search iPads, iPods, all smart phones and cell phones, and gadgets not yet invented.

You can read the current version of the law which needs Senate approval due to the deletion of the reimbursement clause by clicking HERE.

And in case you were wondering, Orange County District Attorney Tony Rackauckas OPPOSES WARRANTED SEARCHES! 

When does a cell phone become a computer?

Reading an Orange County Register Editorial, Court hangs up on Fourth Amendment, I learned that the California Supreme Court ruled on January 3, 2011 police may search the files and data stored on the cell phones of suspects who are arrested without having to obtain a warrant. 

The Administration of Justice major in me thinks the practice is a quick way to get information to use against the suspect.  As an investigatory practice, it sounds expedient.

The Constitutionalist in me says STOP!  What's the rush? Go get a warrant. 

The editorial sums up the ruling like this:

It is archaic and short-sighted to liken cell phones to an article of clothing or a wallet; they are more akin to minicomputers, often containing extensive, intimate personal and professional data. Applications on phones store financial information, bank records and passwords, not to mention personal e-mails, photos and text messages. Giving police offers undue power to seize and peruse cell phones without a warrant is a threat to fundamental rights.

Indeed, it is archaic and short-sighted.. 

My current Blackberry has far more computing power than my home PC, which is admittedly old and outdated but still in daily use.  Like most smart-phone users, my Blackberry provides direct access to my social network accounts, multiple email accounts, confidential work files, and sensitive data.  My phone acts as a single portal into the far corners of my life.  As such, I protect my phone like I would others might protect their laptop or a fine piece of heirloom jewelry.

Often, when posting bail and being released, personal items such as the clothes of the suspect are returned to him or her.  If a phone was truly on the same level as clothing, officers might remove the battery and inspect it for physical contraband before returning it to the suspect.

The standards, though nearly the same, are different when it comes to arrest versus search and how each are carried out.  In California, the officer must have probable cause to detain or arrest someone.  The search and seizure of property, however, is a little more strict. First, only a judge may issue a warrant.  Second, before the judge can sign off on the warrant, two requirements must be met: the judge must reasonably believe (1) that a crime has been committed, and (2) that evidence of that crime is likely to be found in the place(s) described in the search warrant.¹ If the facts presented in the warrant application are convincing, the judge must sign and issue the search warrant.²

It takes a good argument supported by evidence to get a judge to sign a warrant.  This process helps create a filter against abuse and unreasonable searches and seizures.  Unfortunately, the California Supreme Court thinks that the mere arrest of a suspect, no matter the circumstances, allows for law enforcement to  dig into the arrestee's personal property which may be unrelated to the reason for their arrest. 

Imagine if a Justice of the Supreme Court were arrested, say for DUI, and their phone searched.  Would information in their phone, such as a text message to his or her spouse requesting a ride home after a few too many drinks, be used against them at trial?  Yes.  What if the Justice was married but requested a ride home from a secret lover?  Would the secret be out of the bag and would it would the information be used against the judge at trial?  Yes.  Would the Justice be more likely to think a warrant necessary for the search of his or her phone?  Yes, especially when the divorce attorneys obtained the same information used by the criminal court for the DUI from the court transcripts. 
¹California Penal Code 1525 -- Issuance; probable cause; supporting affidavits; contents of application. ("A search warrant cannot be issued but upon probable cause, supported by affidavit, naming or describing the person to be searched or searched for, and particularly describing the property, thing, or things and the place to be searched.")

²California Penal Code 1528 -- Issuance; magistrate satisfied as to grounds; formalities; command; duplicate original warrant. ("(a) If the magistrate is thereupon satisfied of the existence of the grounds of the application, or that there is probable cause to believe their existence, he or she must issue a search warrant, signed by him or her with his or her name of office, to a peace officer in his or her county, commanding him or her forthwith to search the person or place named for the property or things or person or persons specified, and to retain the property or things in his or her custody subject to order of the court as provided by [California Penal Code] Section 1536.")