Devices Fair Game for Police Searches
California Supreme Court holds that no warrant is needed to access contents
of a cell phone confiscated during an arrest,
explains Jeffrey Hayden.
March 11, 2011
Jan. 3 was the first business day of the new year. Long-time Chief Justice
Ronald George had just retired. Jerry Brown was
returning to the office he had left behind some 28 years earlier, succeeding
perhaps the single biggest celebrity to hold an
elected executive branch office since Ronald Reagan. All but one of the
state's newly elected constitutional officials were busy
being sworn in.
With the attention of virtually all media directed toward the change of
power in Sacramento — the Democrats took over not just
the governor's office, but every major constitutional office in state
government — a divided California Supreme Court quietly
issued a major decision that constituted a major defeat for notions of
personal privacy amidst the proliferation of personal
electronic devices, People v. Diaz, 11 C.D.O.S. 107.
The story began nearly four years earlier when, on an April afternoon
in 2007, one Gregory Diaz purportedly drove a drug
dealer to the scene of a drug transaction; the dealer, in the back of
Diaz's car, engaged in the sale of Ecstasy to an informant
as a Ventura County deputy sheriff listened in over electronic surveillance
equipment. Upon completion of the controlled buy,
the alleged drug dealer was arrested, as was Diaz as a co-conspirator.
Nothing thus far was anything but ordinary in the day-to-day enforcement
of the laws proscribing the possession or
distribution of controlled substances.
Some 90 minutes after Diaz was arrested, the arresting officers interrogated
Diaz, who denied any knowledge of the drug
transaction. Minutes later, the officers retrieved his cell phone from
his booked property and manipulated the data in order to
search the messages contained on the phone.
In looking at the text message folder, the officers found text messages
that implicated Diaz in the drug transaction. The officers
returned to Diaz and showed him the phone, opened to a message that read
"6 4 80," which the deputy interpreted to mean
six ecstasy tablets for $80. Confronted with this discovery, Diaz confessed
his involvement in the drug sale to arresting
Diaz moved to suppress the evidence from the search of his phone as well
as the confession that followed, claiming the
search of the cell phone violated his right to be free from unlawful search
and seizure under the Fourth Amendment. At the
hearing, the officer admitted he had to manipulate the phone and go to
several different screens to access the text message
folder, but he did not recall whether the cell phone was on when he picked
it up to look through it.
The trial court denied the motion, finding the search was incident to
a lawful arrest. Diaz then entered a plea, was admitted to
probation, and appealed the denial of the motion and the search that followed.
While it is well-established that most issues are waived by a plea of
guilty or no contest, the denial of a motion to suppress is
one of the few issues preserved for appeal by raising the motion in the
trial court and is not later waived by a plea of guilty.
Up until this little-noticed decision by the California Supreme Court,
the propriety of such a search was a hotly contested issue
in state and federal courts.
In a typical case, the defendant would argue the merits of the arrest,
the search of the automobile or other instrumentality in which the phone
was found, and ultimately, that even if the arrest itself was lawful,
there was no exigency to search the phone
or electronic device itself — already held in evidence — without
a warrant. To that end, the U.S. Supreme Court has held that
"property seized at the time of an arrest cannot be justified as
incident to that arrest either if the search is remote in time or
place from the arrest, or no exigency exists." U.S. v. Chadwick,
433 U.S. 1 (1977).
The prosecution would independently defend the probable cause to arrest
and argue any search that ensued was incident to
arrest; federal courts have long recognized the validity of a search that
was conducted incident to arrest as an exception to the
search warrant requirement under the Fourth Amendment. The California
Supreme Court has followed, holding that incident
to arrest, officers may conduct a limited search to locate not only weapons
or contraband, but also instrumentalities used to
commit the crime.
While the Diaz case worked its way through the California courts, parallel
developments were taking place in federal courts
suggesting the ultimate resolution might look quite different than the
result reached by the California Supreme Court.
A mere 28 days after Diaz was arrested in Ventura County, an unpublished
case out of the Northern District of California
considered searches of defendants' cell phones that had occurred approximately
an hour and a half after their arrests, and
thus were not roughly contemporaneous with the arrests. Holding that "[u]nder
these circumstances, such delayed searches
would be lawful if they are considered 'searches of the person,' as opposed
to 'searches of possessions within an arrestee's
immediate control' the court found that a modern cell phone, which is
capable of storing immense amounts of highly personal
information, is properly considered a "possession within an arrestee's
immediate control" rather than an element of the
person. As such, the court concluded that once officers seized defendants'
cell phones at the station house, they were
required to obtain a warrant to conduct the searches. U.S. v. Park, 2007
WL 1521573 (N.D. Cal. May 23, 2007). Accordingly,
the Park court granted the motion under circumstances similar to Diaz.
Two years later, in Arizona v. Gant, 129 S. Ct. 1710 (2009), the U.S.
Supreme Court limited the search-incident-to-arrest
doctrine by holding that police may not search containers in a vehicle's
passenger compartment "incident to a recent
occupant's arrest after the arrestee has been secured and cannot access
the interior of the vehicle."
Writing for the majority in Diaz, Justice Ming Chin argues three U.S.
Supreme Court decisions authorize the delayed search of
containers associated with an arrestee's person. The majority opinion
distinguished Gant insofar as Gant involved a search of
the compartment of a vehicle formerly under a now subdued arrestee's control,
rather than the search of the arrestee's person.
As Justice Joyce Kennard explains in her concurring opinion, when California
voters enacted an initiative measure known as
Proposition 8 in 1982, which added to the California Constitution a "Right
to Truth-in-Evidence" provision, they prohibited
exclusion of relevant evidence in a criminal proceeding on the ground
that the evidence was obtained unlawfully. Once again,
federal courts have held just the opposite. A U.S. Supreme Court decision,
which has been the law for close to 60 years,
established the exclusionary rule to bar the introduction of evidence
found to be obtained in violation of the Fourth
As did the Park court, the dissenting justices in Diaz asserted that in
light of the vast data storage capacity of "smart phones"
and similar devices, the privacy interests that the federal Constitution's
Fourth Amendment was intended to protect would be
better served by a rule that did not allow police "to rummage at
leisure through 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
Information that would have required a room to store can now be put on
a device that fits on an average key chain. As
electronic devices become more relevant to our daily lives, we incorporate
more and more of our lives into the information —
e-mails, calendars, sites we visit, personal photographs, contact information
— contained therein. Just what privacy is left in
our lives in an electronic age has already been debated for years.
Now, the debate continues. Law enforcement would feel that placing a wall
around electronic data would allow anyone to
escape scrutiny by merely scanning or storing electronically that which
would otherwise be open to search — a limitation that
could jeopardize their efforts. Civil libertarians would note that, at
least in California, even an arrest for a traffic citation now
expose someone's most intimate secrets to the scrutiny of the government.
Jeffrey Hayden is a certified criminal law specialist practicing out of
Redwood City. He is the vice-chair of the Criminal Law
Advisory Commission of the State Bar of California.