Calif. Court OKs Warrantless Cell Phone Searches

SAN FRANCISCO – The California Supreme Court has ruled that police officers can search a suspect’s cell phone without a warrant when the suspect is lawfully arrested. Except for a court decision in Ohio, the California case is in agreement with other federal court rulings in the nation.

The data that is collected from cell phones, including incriminating texts, E-mails or sensitive data can be used as evidence.

The decision, released Monday, involves the 2007 arrest of Gregory Diaz by Senior Deputy Sheriff Victor Fazio of the Ventura County Sheriff’s Department. Fazio witnessed Diaz participating in a police informant’s controlled purchase of Ecstasy. A short time later at the police station, the officer looked through the defendant’s phone and found a text message that said “6 4 80,” which meant “six pills of Ecstasy for $80.”

After being shown this message by Fazio, Diaz then admitted to participating in the drug sale, and he was charged with selling a controlled substance. Diaz, however, pleaded not guilty and moved to suppress the fruits of the cell phone search – the text message and the statements he made when confronted with it – arguing that the warrantless search of the cell phone violated the Fourth Amendment.

The majority of justices ruled that the cell phone was a personal item of Diaz’s at the time of his arrest and during the administrative processing at the police station. “Because the cell phone was immediately associated with defendant’s person, [the police were] entitled to inspect its contents without a warrant,” said the justices in their decision.

Justice Kathryn Werdegar, however, dissented from the majority opinion.

“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,” she said. “…Never before has it been possible to carry so much personal or business information in one’s pocket or purse. The potential impairment to privacy if arrestees’ mobile phones and handheld computers are treated like clothing or cigarette packages, fully searchable without probable cause or a warrant, is correspondingly great.”

Although several previous federal court rulings, including those in Maine and Texas, appear to be in agreement with the California decision, the Ohio Supreme Court has come out on the other side of the issue. It has ruled that digital containers are more protected than other containers, such as pockets, wallets, backpacks and packs of cigarettes.

Diaz’s lawyer plans to appeal the decision to the U.S. Supreme Court, according to MSNBC.

Devallis Rutledge, who is special counsel to the district attorney of Los Angeles County, is hopeful that the nation’s highest court will rule on this matter so that the law will be the same from state to state.

“We need to have a U.S. Supreme Court decision on this because it’s not good to have one law in Ohio and one in California,” he told Campus Safety magazine. “My hope is that they will agree [with the Diaz decision] and say that we can’t place on police officers in the field the burden of determining as technology advances whether a particular product that has been put out by Apple or Microsoft is going to fit into a category of things that are or aren’t searchable.

“The only workable rule that the U.S. Supreme Court can come down with, that I see, is the same one that the California court came down with in Diaz; namely we’re not going to differentiate between containers that hold data or information because we can’t anticipate what they are going to look like.”

So how should sworn police officers, both on campus and in traditional jurisdictions, handle instances where a suspect who has been lawfully arrested has a cell phone that might provide incriminating evidence? According to Rutledge, in most cases, they can proceed with the warrantless search.

“Unless they’re in Ohio, I’m not aware of any other jurisdiction, either state or federal, that has ruled [against warrantless cell phone searches],” he said. “The weight of authority, both state and federal, is that you may make a warrantless search of a cell phone that a person is wearing or carrying at the time. You can make it then, at the time of the arrest, or back at the station an hour and a half later when you get around to it.”

Read the decision.

Additional coverage. 

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