California Case Says Cell Phones Are Searchable at Arrest Without A Warrant

One of the cases that's creating a buzz on the Internet is People v. Diaz (California Supreme Court S166600, 01/03/2011).  The issue in that case had to do with whether the police could search the contents of a cell phone that was discovered on Diaz' person at the time he was arrested.  He was charged with possession and transportation of drugs.  The cell phone search took place some 30 to 90 minutes after Diaz was arrested and was conducted without a warrant.  A text message found in a folder on the phone included the words "6 4 80" which was interpreted as a quote for the drug Ecstasy, meaning 6 tabs sell for $80.

The case is drawing attention because the item searched is a cell phone.  Smart phones can hold all kinds of information that detail the life and choices of an individual.  Law abiding citizens may not fear information appearing on a cell phone to be used as evidence against them.  This information is personal, can be highly detailed, and private.  It should be of no concern to anyone except to whom the owner shares it.  May people who aren't criminals can relate to this because they carry devices that offer the same type of storage.  These include laptops, notebooks, tablets, thumb drives, portable hard drives, and remote storage.

Does a warrantless search of these devices violate the Fourth Amendment?  The California Supreme Court said no when carried on the person of the arrested individual.  The justification for that conclusion comes from the synthesis of three cases from the United States Supreme Court.  Those decisions are United States v. Robinson (1973) 414 U.S. 218, United States v. Edwards (1974) 415 U.S. 800, and United States v. Chadwick (1977) 433 U.S. 1.

The Court notes that under these cases, no warrant is required to conduct a full search of the person incident to a lawful arrest.  Moreover,  the warrantless search and inspection need not occur at the time of arrest.  Much is made of the exigent circumstances where an officer is allowed to search an individual for weapons out of concern for his or her safety.  The Supreme Court has ruled that a search conducted after the individual is secured does not always require a warrant.  The California Supreme Court uses these principles to justify upholding the search.  The Court distinguished circumstances when a phone is not on the immediate person of the arrestee.  The facts of this case, however, did not require the Court to make that analysis.

The dissent's position was that the phone was similar to a locked and closed container and not searchable without a warrant.  The dissent suggested that these cases relied upon by the majority did not apply as items such as cell phones and other electronic devices did not exists at the time they were decided.  The majority disagreed and read the precedent to mean that the character of the searched items was not important, merely the fact that it was on the person of the arrestee was enough to trigger a warrantless search.  The Court said it would follow the existing precedent and that the United States Supreme Court can fashion its own rule if ever confronted with the same issue.

Contrast this decision with People v. Smith, 124 Ohio St. 3d 163, 920 N.E.2d 949 (2009).  The circumstances were similar, though the seized phone in Smith had limited capabilities beyond placing calls such as texting and photos.  The Ohio Supreme Court took its cue from from a Federal District Court case, United States v. Pak (May 23, 2007), N.D.Cal. No. CR 05-375 SI, 2007 WL 1521573.  As described by the Ohio Supreme Court:

{¶ 18} This district court reasoned that modern cell phones "have the capacity for storing immense amounts of private information" and thus likened the devices to laptop computers, in which arrestees have significant privacy interests, rather than to address books or pagers found on their persons, in which they have lesser privacy interests. Park, 2007 WL 1521573, *8.  Because the search of the cell phone's contents was not conducted out of concern for the officer's safety or to preserve evidence, the court found that it did not fall under the search-incident-to-arrest exception and that the officers should have obtained a warrant to conduct the search.

Ohio suppressed the search as one that required a warrant. 

Many of the comments attached to articles about the decision suggest that an individual in the same circumstances as Diaz should have had encrypted data on the phone.  There is an article on Ars Technica that goes into detail about how to encrypt phones and other devices to keep some of that data private.  Encryption isn't always the norm on cell phones and the article notes that third party software can be weak in protection and difficult to implement.  Successful encryption requires some skills and understanding on the part of an average user.  Then there is the consideration as to whether law enforcement agencies have the ability to break it.  All in all, encryption is a bit more complicated compared to uploading a Facebook update or pictures to Flickr.

From my perspective, though, much of this amounts to whether a warrant is necessary.  A seized phone or device would be inventoried by law enforcement incident to the arrest.  How difficult would it be to get a warrant when time is not an issue?  I realize that establishing probable cause is a high standard.  But with the defendant in custody with related evidence to a crime, would a judge really turn down law enforcement?  Of equal importance but not adressed in these cases is how easy or hard it would be to get to cloud based data linked from these devices.  I suppose a court would grant some leeway to law enforcement if there were true exigent circumstances for preserving evidence.

I suspect that the U.S. Supreme Court will have to consider this issue sooner or later.  An individual may organize him or herself using as many digital alternatives to "papers and effects" and store or link to them using a plethora of portable devices.  As a side note, I wonder how an "originalist" (I won't mention any names) on the Supreme Court would interpret this section to apply to digital storage as it didn't exist in 1789.  The California and Ohio courts didn't get caught up in that potential problem.  It would be nice to have consistent rules on data privacy as more of our lives are represented in the digital record.  As for now it depends on where we happen to live [MG].