California Supreme Court: Cell Phone Searches Don't Need a Warrant

Awful 4th amendment decision yesterday in California that searching one's cell phone data does not require a warrant, in a time and place where a cell phone is more like a computer than a phone. Ars Technica with the details:

The ruling comes as a result of the conviction of one Gregory Diaz, who was arrested for trying to sell ecstasy to a police informant in 2007 and had his phone confiscated when he arrived at the police station. The police eventually went through Diaz's text message folder and found one that read "6 4 80." Such a message means nothing to most of us, but it was apparently enough to be used as evidence against Diaz (for those curious, it means six pills will cost $80).

Diaz had argued that the warrantless search of his phone violated his Fourth Amendment rights, but the trial court said that anything found on his person at the time of arrest was "really fair game in terms of being evidence of a crime."

In its review of the case, the Supreme Court held that the Fourth Amendment didn't apply to the text messages on Diaz's cell phone at the time of arrest. The court cited a number of previous cases wherein defendants were arrested with all manner of incriminating objects—heroin tablets hidden in a cigarette case, paint chips hidden in clothing, marijuana in the trunk of a car—which did not require a warrant to obtain. The court said that the phone was "immediately associated" with Diaz's person, and therefore the warrantless search was valid.

Some on the Court sensibly dissented, as Ars Technica sums up, arguing that:

the court majority's opinion would allow police "carte blanche, with no showing of exigency, 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 arrestee's person. The majority thus sanctions a highly intrusive and unjustified type of search, one meeting neither the warrant requirement nor the reasonableness requirement of the Fourth Amendment to the United States Constitution."

Some background on past national precedent on cell phone searches:

The courts have gone back and forth in the past on how much privacy protection should be given to data that can be found on a citizen's cell phone. A Pennsylvania District Court ruled in 2008 that law enforcement must get a warrant before acquiring historical records of a cell phone user's physical movements. The same year, the 9th Circuit Court said that the text messages of a police officer had to meet the standards of a reasonable search before law enforcement could access them. In 2010, however, the US Supreme Court said that government employers have the right to read transcripts of employees' e-mails, IMs, texts, and other communications, and that the Fourth Amendment wouldn't protect them from a government search.

Julian Sanchez's classic 2007 Reason magazine cover story on technology and the 4th Amendment, now more than ever!

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  • Old Mexican||

    In its review of the case, the Supreme Court held that the Fourth Amendment didn't apply to the text messages on Diaz's cell phone at the time of arrest. The court cited a number of previous cases wherein defendants were arrested with all manner of incriminating objects — heroin tablets hidden in a cigarette case, paint chips hidden in clothing, marijuana in the trunk of a car — which did not require a warrant to obtain.

    The courts sure know how to spin things. There is a HUGE difference between finding an "incriminating item" in a person, like for instance, a knife covered in blood, or someone else's wallet (what is called "discovery through plain sight"), and a cell phone where the text messages have to be found through fucking searching!!!!

  • ||

    I'm wondering what will happen when the cops bust somebody and try to search the phone, but it's locked. If the owner doesn't give them the password, will that be deemed "obstruction of justice"?

  • Mo||

    I'm curious about this. I use my phone for work and due to data security rules I'm not allowed to give my password to anyone (not even my wife). I wonder what would happen then.

  • ||

    I would never use my phone for work, since it gives one's employer an in to claim some jurisdiction.

  • ||

    I would never use my phone for work, since it gives one's employer an in to claim some jurisdiction.

  • ||

    I would never use my phone for work, since it gives one's employer an in to claim some jurisdiction.

  • ||

    From what I understand, if it's password protected they need a warrant. Not sure what happens when they get one, though.

  • ||

    It is seriously beyond comprehension that a court could find for the police here.

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...

    If a cell phone, or a computer for that matter, does not fall under "papers and effects", then what does?

    What if I am actually carrying my "papers"? Can they read those too without probable cause that they are involved in a crime that requires immediate attention?

    Is it really that freaking hard to get a warrant? The guy's in jail. You have his phone. What the hell?

  • Old Mexican||

    Re: MikeP,

    The courts are just doing their job of protecting their meal ticket. Cell phones should perfectly be protected under the term "effects." It is one thing to discover evidence when it is in plain sight or if the discovery was inevitable (like when frisking a person). It is an entirely DIFFERENT matter when one has to actively SEEK this evidence in a cell phone's message inbox - THAT should require a warrant, no matter what the statist fucks in the CA Supreme Court decide.

  • Steve||

    If a guy gets arrested and is carrying a manilla folder, do the cops have to get a search warrant?

  • ||

    Unless there is reasonable suspicion that there is something in that folder pertinent to a specific crime, of course they do. Even if they have such reasonable suspicion, if they have the guy in jail and the manila folder in the evidence room, they should still get a warrant.

    What, are judges charging for warrants now?

  • Steve||

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...

    Means the cops can't stop you willy-nilly (or go into your house or car) and go through your stuff. If an arrest is legit, it would seem that all that you have on you would be searchable. (I have no problem adding extra protections through legislation)

  • ||

    So if they come to my house to arrest me, they can search my house?

  • ||

    If you're carrying your house with you, yes.

  • ||

    The reason there are exceptions for searching persons or cars is because of (a) the potential risk to the officers involved, of which a folded piece of paper or the like poses none, and (b) the mobility of these things while a warrant is being pursued.

    You arrest a guy, take his stuff, put him in jail, and you still can't be bothered to get a warrant? Who do you think you are? The government?

  • Gray Ghost||

    The concept you're looking for is, "Search Incident to Arrest." It's an exception to the general requirement that a warrant is required to search one's papers or person. Like all of these exceptions, whether the evidence found during the search is admissible later in court, depends on the circumstances of the search.

    Get cuffed on the floor of your living room, as in MikeP's example, and the living room cabinets near you are probably fair game. Even without a warrant. Your bedroom cabinets probably aren't. All of this depends on your jurisdiction; specifically, what judges there have previously ruled concerning the Search incident to arrest exception.

    This article cites many of the relevant Supreme Court cases: http://law.onecle.com/constitu.....rrest.html

  • ||

    How about a folded piece of paper with something written on the inside. Do they have to get a warrant to unfold it?

  • ||

    It depends on the person's expectation of privacy. If it is utterly obvious that there was no expectation of privacy, then they can unfold it. If it has written on the outside "I expect no one but me will unfold this. Get a warrant if you want to unfold it.", then, no, they can't.

    Why do you want to give the state so much power? What part of "papers" in the Fourth Amendment is so unclear?

  • Steve||

    When you are legally arrested, it is the arrest that makes the search of your person (and affects) "reasonable."

    The amendment is to stop the government from conducting searches without probable cause (and no, driving down the street is not probable cause.)

  • ||

    When you are arrested, the government can't go to your house and search it without a warrant.

    Why then do you think they can search your papers and effects if you happen to be carrying them?

  • Steve||

    Because what you are carrying (when arrested for a crime) is different than what's back at your house.

    This assumes that you are caught in the act or while fleeing. I don't think it is different if they are arresting you for a prior act on a warrant, but I'm open to being corrected.

  • ||

    Again, if they arrest me at my house, why can't they search my house? I'm there. It is likely that evidence is right there too. Why must they get a warrant?

    Why is my house some sort of magic place where my rights to my papers and effects are protected, but if I am carrying those same papers and effects, my rights are abrogated?

    The reasons for searching things on my person are based in (a) protecting the police and public and (b) the fact that I can carry these things away while they go fetch a warrant.

    If I am arrested, neither applies. They should have to get a warrant to go fishing -- to prevent the very fishing that not getting a warrant empowers.

  • ||

    What part of "papers" in the Fourth Amendment is so unclear?

    If we're going to get literalist about the text, then you should note that the text says nothing about a warrant being required for any search. The whole thing hinges on the definition of "reasonable", which is (probably intentionally) sorted out by the courts to apply to different sorts of circumstances.

  • ||

    ...which is (probably intentionally) sorted out by the courts to apply to different sorts of circumstances.

    All of which must be "reasonable" -- a word that has a long and well understood meaning in common law.

    Considering that one's cell phone is obviously one's "effect" -- i.e., movable belonging -- and can trivially hold the entirety of what the founders would have considered one's "papers" in 1789, I find it hard to believe that they would think it reasonable that the police could look through all of that without a warrant.

  • ||

    It depends on the person's expectation of privacy.

    Nice dodge attempt. If you're walking around with a folded piece of paper, you are clearly not expecting other people to be able to read it. So, your position is that unfolding a piece of paper carried in-hand by an arrestee constitutes an unreasonable search.

  • ||

    Yes, that is my position. The exception would be if the police suspected it was a particularly lethal piece of paper or if they had probable cause the paper contained evidence of a crime that can't wait for a warrant.

    Say I write down a confession on a piece of paper in the interrogation room, but say I won't show it to the police until I talk to my lawyer. Why do you think they should be allowed to take it from me and read it?

  • Old Mexican||

    In 2010, however, the US Supreme Court said that government employers have the right to read transcripts of employees' e-mails, IMs, texts, and other communications, and that the Fourth Amendment wouldn't protect them from a government search.

    Only if they use government computers/equipment. It's the same standard as in the private sector: you're not entitled to privacy if you use company assets to communicate with others (computers and networks or company phones/cell phones) - bring your own computer with your own network card if you wish anonymity.

  • Geotpf||

    Exactly. That's a different and much weaker standard. Heck, the employer owns the thing in question. This case seems to be new and unique case law. An appeal to the Supremes would be appropiate here.

  • Rrabbit||

    Thanks for the nut-punch. I needed that.

  • cmace||

    Were these messages actually on the phone when the cops got it or were they pulled off a server?

  • Camel's Nose||

    Exactly! The phone is a tool used to access information.

    Does this mean that if the cops find your keys in your pocket, they can use them to look through your house without a warrant?

  • Invisible Finger||

    government employers have the right to read transcripts of employees' e-mails, IMs, texts, and other communications, and that the Fourth Amendment wouldn't protect them from a government search.

    That only makes sense if they're using government equipment. If the government employee is using personal property, then it makes no sense.

  • JD||

    The case they were referring to (City of Ontario v. Quon) was about a police officer who was fired for sending sexually explicit messages from his department-issued pager.

  • ||

    If your car has dimished rights because it's used on public streets, I would expect that idea to crossover to other items when used in public. Not that I agree, but when the door is opened, they will use it.

  • Old Mexican||

    Re: TrickyVic,

    If your car has dimished rights because it's used on public streets, I would expect that idea to crossover to other items when used in public.

    Actually your car is off limits to the police if you do not consent to searches and if items are not left in plain sight. For instance, they cannot ask you to open the trunk unless there's reasonable suspicion you may be carrying something not kosher (like a person who's banging on the trunk, for instance.)

    Obviously, a police is trained to trick you into compliance, but he cannot make you do something that can incriminate you (5th Amendment) nor compel you to deliver 'evidence' by opening the trunk of your car (4th Amendment). The only people that can violate your 4th and 5th Amendment rights are the Border Patrol agents who operate under Nazi Germany law, not American or common law.

  • cynical||

    Ars never should have dropped Sanchez. Was one of the reasons I started reading regularly.

  • x,y||

    Password protect your phones. They won't think to try "getawarrantscum."

  • ||

    Damn, now you gave it away. Don't think for a second they're not monitoring this site. We're the enemy of statists. Well, most of us.

  • ||

    Some of us *cough*MNG,Tony*cough* are the informants of statists.

  • ||

    The time of your post is enough evidence to convict you.

  • ||

    If I were on a jury and the prosecution presented a text message whose sole contents were "6 4 80" as incriminating evidence, I probably would have LOLed right there in the courtroom.

  • ||

    But I fail to see how the contents of a cell phone's memory should be treated differently from an address book or a folded up piece of paper in your pocket. The fact that something is electronic does not make it sacred.

    And anyone who leaves sensitive information on a device without password protection is insane to begin with. Forget getting arrested, what happens if it gets lost or stolen?

  • ||

    This is all Bush's fault.

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