A DISCUSSION OF LAW AND JOURNALISM

Cell Phones and Protection From Unlawful Searches

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By Russell Smith

Leave your cell phones at home Californians, the police are coming for them.

On January 3, the California Supreme Court released its opinion in People v. Gregory Diaz and held that police may, without a warrant or probable cause, search the contents of a suspect’s cell phone as a search incident to arrest. Because of the prevalence and computing power of today’s smart phones, this ruling subjects millions of Californians to warrantless searches of their (formerly) private phone records, photos, e-mails, and internet histories.

Permitting police to conduct warrantless searches through modern cell phones gives unprecedented access to people’s personal information. The Diaz court disregards these consequences in its decision, leaving cell phone users unprotected from overzealous police officers.

In Diaz, the defendant was arrested on suspicion of drug dealing. At the station, police confiscated his cell phone and searched through his text message folder until they uncovered the message “6 4 80.” The officers believed this was an offer of six pills of ecstasy for eighty dollars. Using this evidence, police pressured Diaz into a confession regarding his involvement with ecstasy sales. Diaz sought to have the confession and the inculpatory text message suppressed as a violation of his Fourth Amendment rights, but California’s highest court believed that binding U.S. Supreme Court precedent foreclosed such a finding.

The Supreme Court has long held that the Fourth Amendment demands that every search must be made on the authority of a warrant, or else it is an unreasonable and unconstitutional search. In legal parlance, warrantless searches are “per se” unreasonable. But over the past fifty years, the Court has fashioned a number of “warrant exceptions” — situations when police may search people or places without first obtaining a warrant. One of these exceptions is a “search incident to arrest.” This exception enables police to, without a warrant or probable cause, immediately search any items in a lawfully arrested suspect’s immediate control.

The Supreme Court’s rationale for the search incident to arrest exception is that police need to be able to immediately search suspects for weapons or destructible evidence of the crime. It makes sense that on arrest, a police officer is entitled to confiscate a suspect’s cell phone to ensure that the suspect cannot destroy potential evidence by deleting data from the phone on the way back to the station. But once a police officer confiscates a cell phone, the same rationale does not justify that an officer be permitted to search the contents of a cell phone. While some cell phones contain remote wipe features, the police officer can take simple precautions, like taking out the battery, to ensure that any evidence stored on a cell phone will be preserved until a warrant is obtained.

Despite the Supreme Court’s faithful application of this rationale in much of its search incident to arrest jurisprudence, the Court has also held that an arrest alone may subject a suspect to a “full search.” In 1973’s United States v. Robinson, the Court approved a search of the contents of a crumpled up cigarette package a suspect had in his jacket pocket following arrest. Even though the police officer confiscated the cigarette package and confirmed that it posed no risk of danger or potential to be lost, the officer was allowed to immediately “inspect the contents” of the package anyway. The Court reasoned that the search fell within the search incident to arrest exception because the arrestee forfeited his right to privacy in the cigarette package simply by being arrested with it in his immediate control. On this authority, the Diaz court feels compelled to conclude that because the cell phone was on the defendant’s person, it is subject to a full search by authorities.

When dealing with issues of police searches of confiscated mobile electronic devices, Robinson has, for the most part, held sway in both federal and state courts. Along with the Diaz court, several other courts have concluded that electronic devices like beepers and computer memo books may be searched without a warrant if seized from a suspect’s person during an arrest.

Unfortunately, the Robinson rationale is so dated that it is ill–equipped to deal with modern mobile electronics. In 1973, people did not walk around with their address books, photo albums, favorite newspapers, and entire catalog of personal and business correspondence jammed in their pockets. In 1973, Robinson threatened very little of our precious privacy. Unfortunately, technology has changed Robinson’s implications. Sensitive information is stored on mobile devices like laptops and cell phones and is necessarily carried into public where, upon arrest, may now be subject to a suspicionless search.

The home is famously an area of enhanced Fourth Amendment protection, but items traditionally stored at home, like personal correspondence or photos, are now less likely to be stored in boxes in the attic than in cell phones. As we upload more and more of our personal effects onto digital platforms, perhaps information stored on our phones should be afforded extra protection.

Both the Diaz decision and the looming decision by the Supreme Court on this issue are vitally important for all Americans’ privacy interests. Even though only “lawfully arrested” people are subject to warrantless cell phone searches, police may lawfully arrest a person for any offense, no matter how insignificant it is. In 2000’s Atwater v. City of Lago Vista, the Court concluded that there was no constitutional problem with police arresting a woman who failed to buckle in her children in while driving.

In fact, you do not even need to be arrested to be implicated in a crime because of cell phone content. Messages sent to a person who is then arrested can implicate the sender. Moreover, the message need not actually be evidence of a criminal act to cause problems. The damning message may be a joke or misconstrued by police entirely. (The police would do well to bone up on text message abbreviations.)

Perhaps a phone contains no evidence of criminal activity, but lots of evidence of embarrassing activity (think: text messages from a mistress, calls to sex phone lines, or porn websites in the phone’s internet browsing history). Such embarrassing phone content could be used by the police as leverage against suspects during interrogation.

And locking your cell phone might not be enough protect it from a police search. Based on the Diaz court’s conclusion that the “character of the searched item” is irrelevant, it seems like the police may at least attempt to hack into a locked phone, if not compel an arrestee to provide the password.

The Diaz decision is especially frightening because of its potential to serve as a model for the Supreme Court. We can only hope that the nine justices on the Court will understand why privacy in our cell phone photos, text messages, and browsing histories is so important.

UPDATE, September 24:  California has banned these kinds of searches.

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One Response

  1. Tim Bathis says:

    You are so naive!! How are we supposed to catch terrorists if we can’t even read their text messages to each other when they are under arrest?

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