Thursday, February 3, 2011

Case law : Cops In California Don't Need A Warrant To Search Your Cell Phone For Info

Search and Seizure
"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 probably cause, supported by Oath or affirmation, and particulary describing the place to be searched, and the persons or things to be seized."

The next time you're in California, you might not want to bring your cell phone with you. Especially if you aren't planning on behaving yourself.

On January 3rd, 2011, California’s Supreme Court ruled in The People v. Gregory Diaz that phones carried at the time by suspects apprehended by police do not have Fourth Amendment protections. The case began in 2007 with the arrest of Gregory Diaz, for selling a controlled substance. Diaz was taken to a police station, where a detective removed Diaz’s phone from his person, and placed it with other evidence collected in the case. The arresting officer began to interview Diaz, and in the course of the interview, looked at the text messages on Diaz’s phone. One read “6 4 80,” or 6 pills for $80. Confronted with this text, Diaz admitted to selling drugs.

In court, however, he argued that viewing of his text messages, by police and without a warrant, violated his Fourth Amendment protections to be secure in is person, papers and effects against warrantless search. An exception to this protection exists: “incident to lawful arrest,” (United States v. Robinson (1973)) an officer may search an arrested suspect and the area immediately around him. Diaz argued that since cell phones today carry huge amounts of information, including information about associates, e-mails, text messages, records of calls and other such revealing data, it should not be subject a search, like clothing or a cigarette package were in prior case law, but rather should be treated like a closed container or box—that once separate from the actor in a significant period of time and space, it should not subject to warrantless search (United States v. Chadwick).

Dissenters on the California court found this argument persuasive; however, the court held that the character of seize evidence did not determine whether it could be searched; merely its possession or control by the actor at time of arrest made it eligible for a later search. The court made a comparison to a traveler carrying a paper bag with some personal effects, and an executive with a locked attaché case. Both, the court reasoned, should share equal protections. So then should a phone carry no more protection than other, unprotected methods of carrying personal information; perhaps an address book, or other “small spatial container” with “highly personal, intimate and private information, such a photographs, letters or diaries”.

It seems to me that the court seems to make fundamental misunderstandings about the digital nature of these devices; a cell phone can contain thousands of emails, photographs, text messages, records of meetings and birthdays, information about associates unlimited in depth and in breadth, and huge numbers of personal notes analogous to those found in a diary. A cell phone can easily hold, in its small form, more enough information to fill dozens of scrapbooks with photographs, stuff whole briefcases with e-mails and text messages, were they to be printed out on paper, fill many, many address books with information about friends and acquaintances, hold years’ worth of information that may take several calendars or planners to hold. In short, cell phones hold more information than could ever be carried by an individual, were it not in a digital form. In ignoring this fact, the court sets a dangerous precedent where a simple arrest can allow authorities to view records containing a record of the individual’s entire life since possessing a cell phone, a terrifying prospect for those with any desire to maintain protection from searches unreasonable in scope and breadth. Laptop computers and the like were not addressed and begs the question: If your phone is password protected, would they need a warrant to use some kind of equipment to get into it? Because having to break into a phone puts it clearly beyond the "plain view" rules to me.It will be interesting to see how this progresses.

This doesn't seem to apply to your everyday traffic stop, Still, this seems invasive, and not all the justices were in agreement with the ruling

Dissenters Kathryn Mickle Werdegar and Carlos Moreno wrote:

"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."

California Deputy Attorney General Victoria Wilson told the media that the split decisions in California and Ohio could lead the U.S. Supreme Court to personally look into the issue of police searching cell phones.

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