Last year the California Supreme Court ruled that examining a suspect’s mobile phone counts as a “search incident to arrest” and therefore does not require a warrant. The decision was so controversial that a bill requiring judicial authorization for such searches was supported by all but four members of the state legislature. But the fifth and fatal vote against the bill came from Gov. Jerry Brown.
In a brief veto message on October 9, Brown said that “the courts are better suited to resolve the complex and case-specific issues relating to constitutional search-and-seizures protections.” On the contrary, George Washington University law professor Orin Kerr told Wired, “it is very difficult for courts to decide Fourth Amendment cases involving developing technologies like cell phones.”
The California case, People v. Diaz, involved a drug suspect whose confiscated phone was searched 90 minutes after he was taken into custody, revealing incriminating text messages that led him to confess. The search was not necessary to prevent the suspect from reaching a weapon or destroying evidence—the two main rationales for allowing police to search arrestees without a warrant. The decision’s critics also noted that rummaging someone’s mobile phone reveals much more information than removing the contents of his pockets. r