Should A Search Warrant Be Required For Cell Phones and Handheld Computers?

Legislation that would require a search warrant before examining the content of a cell phone awaits action by Gov. Jerry Brown.

The measure – SB 914 by Sen. Mark Leno, a San Francisco Democrat – would overturn a 5 to 2 ruling by the California Supreme Court in People v. Diaz upholding the right of law enforcement to conduct a warrantless search of the phone’s content.

“Such a search is valid as being incident to a lawful custodial arrest,” the majority held.

In the case, a Ventura County Sheriff deputy examined the phone of Gregory Diaz after Diaz had been arrested and placed in custody on suspicion of selling Ecstasy.

In the text message folder of Diaz’ phone was the following: “6 4 80.”

The deputy interpreted that to mean six pills for $80 and confronted Diaz with the text.

Diaz, who previously denied making the sale, now confessed.

The state high court said searching an item seized from an arrestee does not violate the Fourth Amendment’s prohibition against unreasonable searches if it “incident” to the arrest. 

A primary  justification for “incident” searches is to ensure there are no concealed weapons or evidence the arrestee might wish to destroy.

Justice Kathryn Werdegar, named to the court by GOP Gov. Pete Wilson in June 1994, dissented.

Here’s an excerpt from Werdegar’s dissent which begins after the 20-page majority opinion and a three-page concurring opinion by Justice Joyce Kennard:

“The majority concludes police may search the data stored on an arrestee’s mobile phone without a warrant, as they may search clothing or small physical containers such as a crumpled cigarette package.

“In my view, electronic communication and data storage devices carried on the person – cellular phones, smartphones and handheld computers – are not sufficiently analogous to (clothing or a crumpled cigarette package.)

“The potential intrusion on informational privacy involved in a police search of a person’s mobile phone, smartphone or handheld computer is unique among searches of an arrestee’s person and effects.

“A contemporary smartphone can hold hundreds or thousands of messages, photographs, videos, maps, contacts, financial records, memoranda and other documents as well as records of the user’s telephone calls and Web browsing.

“Never before has it been possible to carry so much personal or business information in one’s pocket or purse.

“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.

“Warrantless searches incident to arrest are justified by the important interests in officer safety and preservation of evidence.

“Weapons, of course, may be hidden in an arrestee’s clothing or in a physical container on the person. But there is apparently no ‘app’ that will turn an iPhone or any other mobile phone into an effective weapon for use against an arresting officer.

“And if there were, officers would presumably seek to disarm the phone rather than search its data files.

“Clearly, any justification for the warrantless search of a mobile phone must come from the possibility that the arrestee might during the arrest, destroy evidence stored on the phone.

“(But) once a mobile phone has been seized from an arrestee and is under the exclusive control of the police, the arrestee, who is also in police custody, cannot destroy any evidence stored on it. At that point a search of its stored data would seem to require a warrant.”

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