Thursday, January 6, 2011

California Supreme Court rules that police may search arrestees' cell phone contents without a warrant

Glenn Greenwald at Salon has a post about a young Somalian-born US citizen named Gulet Mohamed.
Approximately two weeks ago (on December 20), Mohamed went to the airport in Kuwait to have his visa renewed, as he had done every three months without incident for the last year.  This time, however, he was told by the visa officer that his name had been marked in the computer, and after waiting five hours, he was taken into a room and interrogated by officials who refused to identify themselves.  They then handcuffed and blindfolded him and drove him to some other locale.  That was the start of a two-week-long, still ongoing nightmare during which he was imprisoned for a week in an unknown location by unknown captors, relentlessly interrogated, and severely beaten and threatened with even worse forms of torture.
American officials have now put Mohamed on a no-fly list and barred him from returning to the US, effectively exiling him in spite of his US citizenship.  The entire post is worth reading.  There is also a recording of an interview between Greenwald and Mohamed to which I've not yet listened.

Where I want to draw attention in this post is to an article to which Greenwald links by Bob Sullivan at's The Red Tape Chronicles about an alarming recent decision by the California Supreme Court.
The ruling handed down by California's top court involves the 2007 arrest of Gregory Diaz, who purchased drugs from a police informant. Investigators later looked through Diaz's phone and found text messages that implicated him in a drug deal.  Diaz appealed his conviction, saying the evidence was gathered in violation of the Fourth Amendment, which prohibits unreasonable searches and seizures. The court disagreed, comparing Diaz cell phone to personal effects like clothing, which can be searched by arresting officers.
"The cell phone was an item (of personal property) on (Diaz's) person at the time of his arrest and during the administrative processing at the police station," the justices wrote. "Because the cell phone was immediately associated with defendant’s person, (police were) entitled to inspect its contents without a warrant."  
In fact, the ruling goes further, saying essentially that the Diaz case didn't involve an exception -- such as a need to search the phone to stop a "crime in progress." In other words, this case was not an exception, but rather the rule.
The court could not be more wrong on this.  The text of the Fourth Amendment reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
There are legitimate reasons why an arrestee may be searched without a warrant, specifically for weapons.  However, there is no reason that an officer should be able to go through your text messages, e-mails, etc. without a warrant on any old arrest.  Why would they need the contact list of someone arrested for public intoxication, shoplifting, or simple possession?

The article mentions that established law protects an arrestee's briefcase from being searched without a warrant except for a quick check for weapons.  The contents of the documents inside may not be searched.  How the justices fail to see an equivalence here is beyond me.  Nothing on most people's phones is likely to be evidence of the crime for which they are being arrested, let a alone a weapon.  How can this type of search be considered reasonable?

Let's take a hypothetical case where a kidnapper has been communicating over a cell phone with his victim's family for the purposes of securing a ransom.  The family leaves the ransom at the selected location, and someone is arrested retrieving the ransom.  The police discover a cell phone on the arrestee.  Yes, that cell phone's call record may very well have evidence proving that ransom calls to the family were made on that phone.  However, the guy is already under arrest.  The police already have his cell phone.  He will not be able to delete or otherwise destroy that evidence before a warrant is sought to search the phone's contents.  Why can't they get the damn warrant?

The whole point of warrants is to have an impartial judge examine the evidence and determine whether or not the officer has probable cause to make a search.  Officers are not supposed to be able to make this call for themselves except under exigent circumstances.  I don't see how a search of the contents of any electronic device can be constitutionally undertaken sans warrant.

As the article points out, if this ruling stands, it could very easily extend to laptops and tablets or any other electronic device that you might carry.  They apparently don't qualify as "papers" for the purposes of the Fourth Amendment.

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