Hold the Phone

These days, people carry their entire lives on their smart-phones.  E-mails, text messages, documents, apps, Google searches, Google Maps history, web browsing history — the sheer volume of information contained in personal phones dwarfs what people may have placed even on their desktop computers just a few years ago.

And all of that information may be available to police, should you ever find yourself arrested in California.  Just a few days after the beginning of 2011, the California Supreme Court held in People v. Diaz that the police, after taking a defendant into custody, are entitled to search a person’s cell phone — and the contents of that cell phone — as part of their “search incident to arrest” powers.

The facts of the case are straightforward.  The defendant Gregory Diaz was arrested for selling ecstasy, but denied any involvement in selling the drug.  When he was booked at the station, Diaz was forced to turn over his cell phone.  After his initial interview, a sheriff looked through Diaz’s text message folder and uncovered a message that appeared to indicate an involvement in drug trafficking.  The sheriff confronted Diaz with the text message, and Diaz subsequently admitted his participation in the crime.

The question before the California Supreme Court was simple:  while any other object found on a person can be seized and examined after an arrest, can the police really examine the contents of a modern cellphone?

The California Supreme Court’s unequivocal answer was yes.  The Court reviewed federal precedent and held that “such a search is valid as being incident to a lawful custodial arrest.”  (Opinion at 1.)  US Supreme Court decisions hold that the “loss of privacy upon arrest extends beyond the arrestee’s body to include personal property immediately associated with the person of the arrestee at the time of arrest” and “to open and examine” what they find.  (Opinion at 15 (citation omitted).)

Because federal law did not seem to distinguish between electronic personal effects and other items (such as cigarette packages or wallets), privacy protections over the cell phone are extinguished the moment a person is taken into custody.

In dissent, Justice Werdegar strongly disagreed with his colleagues.  “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. . . .   An individual lawfully arrested and taken into police custody necessarily loses much of his or her bodily privacy, but does not necessarily suffer a reduction in the informational privacy that protects the arrestee’s records.”  (Dissent at 2, 11 (emphasis in original).)

The summary of all of this is that in California, if you are arrested, the police appear to have authority to search the contents of your cell phone and admit any evidence they find in court.

Interestingly enough, this decision is at odds with a May 2007 decision written by Judge Susan Illston, a federal judge sitting in the Northern District of California.  InUnited States v. Park, San Francisco police officers searched the address books and telephone logs found in the cell phones of individuals arrested on charges of cultivation of marijuana.  The officers submitted vague declarations as to when they searched the contents of the cell phone, and what they were looking for.

After reviewing federal law, Judge Illston held that any evidence uncovered from the search could not be admitted into evidence.  “The searches at issue here go far beyond the original rationales for searches incident to arrest, which were to remove weapons to ensure the safety of officers and bystanders, and the need to prevent concealment or destruction of evidence. . . .  [D]ue to the quantity and quality of information that can be stored on a cellular phone, a cellular phone should not be characterized as an element of individual’s clothing or person, but rather as a possession within an arrestee’s immediate control [that has] fourth amendment protection at the station house.”  United States v. Park, No. CR 05-375 SI, 2007 U.S. Dist. LEXIS 40596, *24, *27 (N.D. Cal. May 23, 2007).

Different court decisions on this issue indicate eventual Supreme Court review.  And, truth be told, where the US Supreme Court comes down on cell phone searches incident to arrest may entirely depend on whether or not the justices are using an iPhone or a Droid versus something that just calls and texts.