Jerry Brown Lets Police Rummage Suspects' Mobile Phones Without a Warrant

This week California Gov. Jerry Brown vetoed a bill that would have required police to obtain a warrant before searching an arrestee's mobile phone. The bill, which was unanimously approved by the state Assembly and passed the state Senate by a vote of 32 to 4, was introduced in response to People v. Diaz, a January decision in which the California Supreme Court said examining a drug suspect's text messages 90 minutes after taking him into custody is a valid "search incident to arrest." The case involved Gregory Diaz, who was charged as a co-conspirator for driving an MDMA dealer to a police informant's "controlled purchase." After police found a text message on Diaz's phone saying "6 4 80" (i.e., six pills for $80), he confessed. Last week the U.S. Supreme Court declined to hear an appeal of the decision. Brown likewise was not inclined to second-guess the ruling, saying "the courts are better suited to resolve the complex and case-specific issues relating to constitutional search-and-seizures protections." On the contrary, Fourth Amendment scholar Orin Kerr told Wired, "it is very difficult for courts to decide Fourth Amendment cases involving developing technologies like cellphones." 

Wired suggests that Brown is catering to police unions, a theory that might also help explain why he signed a ban on the open carrying of (unloaded) guns. In this case, however, almost the entire state legislature, including politicians from across the political spectrum, thought Californians deserved more privacy protection than the state Supreme Court was willing to recognize. And since the two main justifications for allowing police to search arrestees without a warrant are to find weapons and to prevent the destruction of evidence, neither of which applied in Diaz, the legislature's reading of the law seems more plausible as well as more protective of civil liberties.

Brian Doherty has more on Diaz here, here, and here. In a 2009 column I discussed Arizona v. Gant, a case in which the U.S. Supreme Court imposed some long-overdue limits on searches incident to arrest. Tim Cavanaugh noted Brown's increasingly cozy relationship with the Correctional Peace Officers Association in the July issue of Reason.