Search and Cell Phone: Warrantless Wireless
Supreme Court of California: The People v. Gregory Diaz
Constitutional law is constantly challenged by changes in the culture. The right to abortion, to own a hand gun, to marry someone of the same gender, all eventually come under constitutional scrutiny. So too do matters less controversial but far more prevalent—matters that were non-existent just 20 years ago—like internet postings, bloggers’ rights and Google satellite photos of our homes and streets. All raise the same question: Can they do or say that? And in our nation of laws (and lawyers), the final answer is usually found somewhere in the Constitution, an amazing document that predates even planes, trains and automobiles.
So how do we deal with cell phones and lawful arrests? Does the Fourth Amendment’s prohibition against unreasonable searches and seizures without a warrant prevent police from seizing and searching the contents of a cell phone incident to a lawful arrest? (think about what might be on a cell phone—numbers, photos, texts, emails and web history, just to name a few personal items). According to the California Supremes, it does not.
When defendant Gregory Diaz was busted for participating in the sale of Ecstasy, his cell phone was seized and its contents subsequently examined by the arresting officer. After denying his involvement in the drug transaction, he was shown a text message from his phone that said “6 4 80” (which like BFF or LOL is shorthand, this time for “[s]ix pills of Ecstasy for $80”). Diaz then admitted his role in the sale.
At trial, however, Diaz pleaded not guilty. He moved to suppress the fruits of the cell phone search, claiming it violated his Fourth Amendment rights. The trial court denied the motion, finding instead that the search was “incident to a lawful arrest” and that no warrant was required. The Court of Appeals affirmed, holding that the phone was “immediately associated with [defendant’s] person at the time of arrest,” and could therefore be searched incident thereto, even if the search of its contents was done some 90 minutes after the arrest.
For the California Supreme Court, the question was whether defendant’s phone was “personal property…immediately associated with [his] person.” The court found that it was, and that a warrantless search of its contents was therefore valid—no different than taking a pack of cigarettes or an item of clothes from an arrestee.
That a phone might contain all sorts of private data was irrelevant to the court. Containers (whether flip phones or glove compartments) can be searched without a warrant incident to a lawful arrest. To attempt to distinguish one container (a cell phone with numbers, texts or digital photos) from another (a shoebox with pictures or letters) would make seizing the item dependent on its character. Too hard a line to draw, according to the court, and one which would favor the computer-toting defendant over the one who brown bags his important info.
Citing the US Supreme Court's decision in United States v. Ross (1982), the California court found that “‘[A] constitutional distinction between “worthy” and “unworthy” containers would be improper.’”
Accordingly, the search of defendant’s phone was valid, the evidence in it could be used against him and his complaint that his rights were violated was without merit.
Or, as Travis Tritt’s old country song puts it, “Here’s a Quarter, Call Someone Who Cares.”
(Cell phone search update April 20, 2011: Michigan police are allegedly using high-tech extractor devices to search and seize the contents of cell phones during routine traffic stops.
