AN APPEAL TO REASON

In People v. Diaz (2011) #S166600, the California Supreme Court reversed the court of appeal's affirmance of the trial court's denial of a motion to suppress evidence of text messages on the defendant's cell phone. The Court held that the officers' search of text messages taken from the defendant's cell phone within 90 minutes after a lawful arrest was incident to a lawful custodial arrest. It held that the cell phone was "immediately associated with defendant's person's," and therefore, the warrantless search was valid.

The opinion was written by Justice Chin. Justices Baxter, Corrigan, and George concurred in the opinion. Justice Kennard wrote a concurring opinion, while Justice Werdegar, joined by Justice Moreno, dissented. The majority relied on federal court decisions that held clothing and small containers could be searched without a warrant.

Justice Werdegar dissented, finding substantial differences between clothing and smart phones. Electronic devices contain enormous amounts of personal and private information. Once the device is taken into police custody, then the defendant cannot erase the information and a warrant could be obtained. Justice Werdegar also distinguished a person's privacy rights in his or her person from a privacy interest in data stored on electronic devices. She reasoned that a person does not lose all privacy rights after being taken into custody. She also explained that some examination of the device may be reasonable, such as when an officer receives a call on the phone or there is a reason to fear imminent loss of evidence.

Justice Werdegar concluded, "The majority's holding, however, goes much further, apparently allowing police carte blanche, with no showing of exigency, to rummage at leisure through {Slip Opn. Page 13} the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee's person. The majority thus sanctions a highly intrusive and unjustified type of search, one meeting neither the warrant requirement nor the reasonableness requirement of the Fourth Amendment to the United States Constitution. As a commentator has noted, '[i]f courts adopted this rule, it would subject anyone who is the subject of a custodial arrest, even for a traffic violation, to a preapproved foray into a virtual warehouse of their most intimate communications and photographs without probable cause.' (Orso, Cellular Phones, Warrantless Searches, and the New Frontier of Fourth Amendment Jurisprudence, supra, 50 Santa Clara L.Rev. at p. 211.) United States Supreme Court authority does not compel this overly permissive rule, and I cannot agree to its adoption."

This ruling is disturbing as many of us travel with smartphones that contain huge amounts of private texts, letters, and contact information. Would this rule be extended to tablet computers or even laptops? An attorney's smartphone should already have password protection if there is any data on it that pertains to a client's files. But more important, this ruling could open the door to searches of smartphones after even a minor charge (that may not even require access to a cellphone for prosecution). Another precaution - although its value might be questioned - is not to have the phone on your person while traveling.

The defense has indicated it plans to appeal to the U.S. Supreme Court, but whether that Court would decide in favor of Fourth Amendment rights given the chance to further put holes in the exclusionary rule, does not hold out much hope for individual rights.