Drug War

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.

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  1. “the courts are better suited to resolve the complex and case-specific issues relating to constitutional search-and-seizures protections.”

    Unless, of course, they make a decision inconsistent with the state’s usurpation of power.

  2. 6 pills for 80, that’s a pretty good price IMO. Too bad the connect is probably out of business now.

    1. Back in the day (’98 and ’99), I never saw them go for less than 20 bucks apiece. At least that’s what I heard they went for.

  3. The legislature should revive this bill at its earliest opportunity, and pass it by veto-proof majority. The problem here is not that the courts aren’t the proper places to examine the nuances of “reasonable” vs. “unreasonable” searches, but that they haven’t caught up with the 21st century. If you read SB914, it clearly addresses the reality that someone could keep their entire life’s records on a “portable electronic device,” whether ipad, cell phone, laptop or whatever. Clearly, the entirety or preponderance of one’s personal records MUST count as being covered by privacy guarantees, but the courts haven’t digested this truth, yet. The legislatures can be quicker to respond, and so it seems reasonable that they SHOULD respond. Brown was wrong here.

    1. I think I read somewhere that the CA legislature has rules which prevent them voting on this again for a year.

      1. Ummm, no, if the governor vetoes a bill, the legislature can override the veto with 2/3 in each chamber. Which they have — unless the Ds close ranks and do the “we won’t buck a D governor” thing they do in Hawaii.

        1. http://www.cnn.com/2011/10/11/…..arch-veto/

          According to California Assembly rules, state legislators must wait a year before attempting to reintroduce this legislation.

    2. The bill was passed unanimously by the assembly and 32 to 4 by the Senate. How is that not a veto-proof majority?

      1. Under the CA Constitution, as it turns out, the full legislature (both houses) must vote AGAIN to overturn a veto. And since Brown vetoed on the last possible day — weeks after the legislature had adjourned — it was impossible for them to vote to override on this occasion. I suppose that previously vetoed bills cannot be taken up by a new legislative session for purposes of veto override. Too bad, and boo to Brown, who obviously intended to bury this and other bills that were vetoed at the absolute last minute. That’s foul play, imho.

  4. I have heard of cops demanding a person turn over a cell phone during a traffic stop citing “officer safety” as cause. It seems that if he can’t search my car or my person at that time (which he can’t legally) he should not have the right to my phone either. I wonder if they can search it if I take the battery out before handing it over!?

    1. As much as this decision is shit, it really only applies to people who are arrested, not just detained for a traffic stop.

      1. ….for resisting…

        1. “disturbing the peace”, “obstructing an officer”, “disorderly conduct”

          You’re arrested whenever they want to arrest you badly enough to fill out the paperwork.

    2. Cops can * request * anything, and phrase it in such a way that it sounds like an order to 95% of the populace.

      Any officer asks or demand I turn over my cell phone, I’m gonna ask to see a search warrant.

    3. Remove the SD card instead… After asking him if “asking” was a request or a police order, of course! It can be important.

      20 years ago I had an extended exchange with an officer at a roadblock on the Bells Rd exit of I-95 in Richmond, VA when they were “asking” to search vehicles. Each time he asked me, I asked him if it was a request or a police order. After the better part of an hour he finally admitted it was not an order, and that I was free to go.

      Maybe a mile away on Warwick Rd another cop pulled me over claiming “erratic driving.” He then claimed he smelled something and wanted to search my vehicle. “I consent to no searches. What do you think you smell?” I knew there was nothing in my pickup except the jack set, the owners manual, a quart of oil with a few paper towels rubber-banded around it and an empty root beer bottle rolling around the floor.

      When I mentioned the ACLU will be interested in the communications records of everyone at the roadblock, he smiled and told me I was free to go.

  5. news flash: statist tyrant who despises all your freedoms affirms his position.

    1. Well, yes, and I didn’t vote for him, either (or for the other statist tyrant who was his opponent, for that matter). My thought was, Brown already had his shot at ruining California in the 70s and went a long way toward achieving that goal; it was time to let someone else have a chance. Electing Brown was as much against the spirit of California’s Term Limits laws as Electing a dead guy to the US Senate several years ago was against both the letter and spirit of the US Constitution. The latter culminated in the defeated John Ashcroft taking the position of Attorney General for GWB. Mr. Brown’s second coming is shaping up to be equally disastrous on many levels.

      1. Hmmph. This has Rove and Cheney written all over it.

  6. he signed a ban on the open carrying of (unloaded) guns.
    How do you get the guns home after purchase?

    1. Unloaded, in a locked container, in an area not accessible to the passengers, with the ammunition separate. Pray.

      1. I still think Archie Bunker had a pretty good idea when he said we should actually hand out guns to all the passengers before a flight and collect all the airline-owned guns after the plane lands. I mean who would want to highjack a plane full of armed passengers.

        1. I can’t imagine that anyone will be hijacking any planes for the next 40 years, at least not any full of Americans.

          1. And I wasn’t supposed to lost that under my name, which of course is Margaret Cho. Because I am her. Naturally. Or else why would I have that name?

            1. I’ve been to a Margaret Cho show, and you are nowhere near as foul-mouthed, so could be spotted as a poser right away. I can’t even say, “nice try.” But thanks for playing.

    2. The easiest solution would be to live somewhere besides kalifornia.

      1. Not really, if you have lived and invested your life here. Some of us were born here (as was Mr. Brown, sadly), and remember how much less crazy this State used to be before foreigners (I’m looking at YOU New York, New Jersey, Pennsylvania, and Connecticut, for starters) brought their socialist ways to the Golden State.

        Sooner or later, you have to stand your ground.

  7. To this day I still can’t think of Jerry Brown without the lyrics of “California! Uber Alles!” by the Dead Kennedys going off in my head.

  8. LOL and liberals still insist that they’re the protectors of civil rights. We’re just supposed to ignore shit like this.

  9. “Shall be secure in their persons, papers, and effects”. Guess what, according to the constitution Brown no longer represents the US government, how about we enforce that law.

    1. Haven’t you heard? The 1st Amendment doesn’t apply to anything coming from a laser printer, either. It’s not a “press”.

      1. B.S.! Who said that?

  10. The old-time Bookies used to keep
    their bets on ‘Flash Paper’; One
    touch of a match, and it was gone.
    There will soon be an App for that,
    with backup in the Cloud.

  11. So if I text a friend the name of the Chicago song he couldn’t remember (“25 or 6 to 4”), then I *must* be dealing drugs!

    1. We have proof he’s a dealer! We caught him jogging down the street in sweat pants and his Timex Ironman said “4:20” right on it!

  12. Dude really does seem to know what the deal is.



    U.S. Government wants the power without a warrant, to introduce as evidence in criminal prosecutions and government civil trials, any phone call record, email or Internet activity. Alarmingly, that would open the door for Police to take out of context, any innocent?hastily written email, fax or phone call record to allege a crime or violation was committed to cause a person’s arrest, fines and or civil asset forfeiture of their property. There are more than 350 laws and violations that can subject property to government asset forfeiture: Government civil asset forfeiture requires only a civil preponderance of evidence for police to forfeit property, little more than hearsay.

    If the Justice Department has its way, any information the FBI derives from (no warrant) acquisition of Web Server Records; User Internet Activity, emails; and phone records, can be used by the FBI for (fishing expeditions) to issue subpoenas in hopes of finding evidence, to prosecute Citizens for any alleged crime or violation?circumventing the Fourth Amendment. Consider: neither Congress nor the courts?determined what NSA electronic surveillance, perhaps illegal under Bush II, could be used by police or introduced into court by government to prosecute U.S. Citizens criminally or civilly. If U.S. Justice Department is permitted (No-warrant) surveillance of all electronic communications, it is problematic state and local law enforcement agencies and private government contractors will want access to prior Bush II /NSA and other government (retained electronic records) of Internet activity; emails and phone call information to secure evidence to arrest Americans and or civilly forfeit their homes, businesses and other assets under Title 18USC and other laws. Of obvious concern, what happens to fair justice in America if police become dependent on “Asset Forfeiture” to help pay their salaries and budget operating costs?

    The “Civil Asset Forfeiture Reform Act of 2000” (effectively eliminated) the “five year statue of limitations” for Government Civil Asset Forfeiture: the statute now runs five years (from the date) police allege they “learned” an asset became subject to forfeiture. It is foreseeable should (no warrant electronic surveillance) be approved; police will relentlessly sift through Citizen and businesses’ (government stored Internet data), emails and phone communications to discover alleged crimes or civil violations. A corrupt/despot U.S. Government may too easily use no-warrant- (seized emails, Internet data and phone call information) to blackmail Americans, corporations and others in the same manner Hitler utilized his earlier passed police state laws to later extort members of parliament, corporations and the wealthy to support passage of Hitler’s 1933 Discriminatory Decrees that suspended the Constitutional Freedoms of German Citizens. A Nazi Government threat of Civil Asset Forfeiture of an individual or corporation’s assets was usually sufficient to ensure Nazi support.

    Under U.S. federal civil forfeiture laws, a person or business need not be charged with a crime for government to forfeit their property. Most U.S. Citizens, property and business owners that defend their assets against Government Civil Asset Forfeiture claim an “innocent owner defense.” This defense can become a “Catch 22” a criminal prosecution trap for both guilty and innocent property owners. Any fresh denial of guilt made to government when questioned about committing a crime “even when you did not do the crime” may “involuntarily waive” a defendant’s right to assert in their defense?the “Criminal Statute of Limitations” past for prosecution; any fresh denial of guilt even 30 years after a crime was committed may allow Government prosecutors to use old and new evidence; including information discovered during a Civil Asset Forfeiture Proceeding to launch a criminal prosecution. For that reason many innocent Americans, property and business owners are reluctant to defend their property and businesses against Government Civil Asset Forfeiture.

    Re: waiving Criminal Statute of Limitations: see USC18, Sec.1001, James Brogan V. United States. N0.96-1579. U.S. See paragraph (6) at:

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