By: David Gold
Should police officers be required to obtain a warrant before searching an arrestee’s cell phone? Under the California Supreme Court’s 2011 opinion in People v. Diaz, the answer, at least under the Fourth Amendment, is no. That court held that the defendant’s cell phone was immediately associated with his person at the time of his arrest and, even without a warrant, was searchable incident to his lawful custodial arrest. In the decision, the court rejected the dissent and defendant’s argument that cell phones should not be searchable without a warrant because of the amount of sensitive personal data contained within the devices.
On March 19, 2013, the ACLU, together with the law firm Pillsbury Winthrop Shaw Pittman LLP, acting as pro bono assistant counsel, filed a complaint against the City and County of San Francisco claiming that a police officer’s warrantless search of the defendant’s cell phone, which was on the defendant’s person at the time of his lawful arrest, violated both the California Constitution and the First Amendment of the US Constitution. Through its complaint, the ACLU’s lawsuit seeks to circumvent the Diaz decision and require police officers to obtain warrants prior to searching the data content on cell phones on grounds other than Fourth Amendment search and seizure. Article 1, Section 1 of the California Constitution explicitly identifies a right to privacy, which, the ACLU argues, makes the state constitution more protective of privacy rights than the US Constitution, since the latter does not explicitly establish privacy rights. Article 1, Section 13 similarly is argued to offer greater protection than the Fourth Amendment against unreasonable searches and seizures. Finally, the ACLU argues that phones contain a great amount of communication, and that allowing for these searches will have a chilling effect on speech, which is not permissible under the First Amendment in this instance, because even though the information on phones is relevant, the search will only be permitted if it furthers a compelling interest.
The ACLU complaint is filled with a detailed factual record of the capacity for cell phones, and particularly smart phones. Not only does it describe in great detail the current ability of phones, but it also notes the expansion of data capacity on the horizon. Additionally, the ACLU argues that there is sensitive personal information of friends, family members, and co-workers contained on an individual’s cell phone, in addition to highly sensitive personal information, such as credit card information. Furthermore, the ACLU challenged that cell phones do not pose a physical threat to police officers and that police officers do not need to search the contents of the phone immediately because no evidence will be destroyed given that officers may use a Faraday Bag, which prevents third parties from accessing and deleting or changing information on the phone.
Since the California Supreme Court has already determined that such phone searches do not violate the Fourth Amendment, if the ACLU loses on these claims, there will be little room to challenge such searches in California, and only a ruling by the US Supreme Court would overrule such a holding. Perhaps, given that cell phones contain information in different applications, there is a workable middle ground approach, that officers may only access information in certain application without a warrant. Or, as the ACLU points out, perhaps Faraday Bags should become commonplace, allowing officers to seize control of an arrestee’s cell phone and prevent any evidence on it from being destroyed, but not search its contents until a warrant is issued. Discussion about these alternatives will only really be relevant if the California Court decides in favor of the ACLU, since a decision for San Francisco will allow officers to search the entire cell phone device of an arrestee without a warrant.
Fun fact from the ACLU complaint: early mobile phones used to weigh almost 90 pounds!
Articles:
http://www.aclu.org/technology-and-liberty/aclu-lawsuit-challenges-warrantless-searches-cell-phones
ACLU-Pillsbury Complaint
https://www.aclunc.org/news/press_releases/asset_upload_file321_12297.pdf
People v. Diaz Decision: