Search your cell phone without a warrant? Of course

[Onions]

The next time you're in California, you might not want to bring your cell phone with you. The California Supreme Court ruled Monday that police can search the cell phone of a person who's been arrested -- including text messages -- without obtaining a warrant, and use that data as evidence.

The ruling opens up disturbing possibilities, such as broad, warrantless searches of e-mails, documents and contacts on smart phones, tablet computers, and perhaps even laptop computers, according to legal expert Mark Rasch.

The ruling handed down by California's top court involves the 2007 arrest of Gregory Diaz, who purchased drugs from a police informant. Investigators later looked through Diaz's phone and found text messages that implicated him in a drug deal. Diaz appealed his conviction, saying the evidence was gathered in violation of the Fourth Amendment, which prohibits unreasonable searches and seizures. The court disagreed, comparing Diaz cell phone to personal effects like clothing, which can be searched by arresting officers.


"The cell phone was an item (of personal property) on (Diaz's) person at the time of his arrest and during the administrative processing at the police station," the justices wrote. "Because the cell phone was immediately associated with defendant’s person, (police were) entitled to inspect its contents without a warrant."

In fact, the ruling goes further, saying essentially that the Diaz case didn't involve an exception -- such as a need to search the phone to stop a "crime in progress." In other words, this case was not an exception, but rather the rule.

Rasch, former head of the Justice Department's computer crime unit, pulled no punches in his reaction to the ruling.

"This ruling isn't just wrong, it's dangerous," said Rasch, now director of cybersecurity and privacy at computer security firm CSC in Virginia. "It's remarkable, because it simply misunderstands the nature of these devices."

The door is open for police to search the entire contents of iPhones or other smart phones that people routinely carry, he said.

"In fact, I would be shocked if police weren't getting instructions right now to do just that," he said.

By applying the "personal property on the defendant's person" standard, Rasch said, the ruling could logically extend to tablets or even laptop computers, he said.

It also flies in the face of established law, which prohibits the warrantless search of briefcases by police, other than a quick search for weapons, Rasch said.

In its ruling, the majority likened cell phone inspection to police inspection of a cigarette pack taken from a suspect, which was ruled a legal search in a prior case. A second ruling was cited involving the search of clothing removed from a suspect.

Rasch said the analogies don't hold, however, as modern phones that can store years' worth of personal information are a far cry from drugs hidden in a cigarette case or clothes pockets.

"There is a process for looking at data inside devices,” he said. “It's called a warrant."

Grants police 'carte blanche'
The California ruling was not unanimous. Dissenting Justice Kathryn Werdegar raised similar concerns in her opinion.

"The majority’s holding ... (grants) 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," she wrote. "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."

Jonathan Turley, a Constitutional law expert at George Washington University, took to his blog to raise his concerns about the ruling.

"The Court has left the Fourth Amendment in tatters and this ruling is the natural extension of that trend," he wrote. "While the Framers wanted to require warrants for searches and seizures, the Court now allows the vast majority of searches and seizures to occur without warrants. As a result, the California Supreme Court would allow police to open cell phone files — the modern equivalent of letter and personal messages.”

Diaz’s lawyer, Lyn A. Woodward, has said she plans to appeal the decision to the U.S. Supreme Court. In the meantime, warrantless searches of cell phones are essentially the law of the land in California.

Password-protection of smart phones might be a useful tool to ward off a warrantless search -- it's not clear that an arrested suspect could be compelled to divulge his or her password to police -- but that legal argument has not yet been made.

[Mace]

Bret Favre will never again travel to California.

[Trampis]

My then 15(sophmore in highschool), now 16 y.o. step-son had some troubled chick at school offer to send him nude pics of herself to his phone. He responded...."ummmm, sure(gulp)"

Long story short, he saw em, deleted em, but then some other teenage dudes who got them also on their phones created a ruckus. The teenage girl then had pornstar remorse and went crying to the powers-that-be at school. She told the school heads who got the pics...my kid got dragged in and grilled...they took his phone and searched it to see for sure he deleted the pics...then threatened him with legal wranglings if the pics ever resurfaced and set him free. All of this without me or his mother being there.

I told him if school authorities ever want to take his phone again, to call us and tell the school types to screw off till we get there.

More weird shit that you and I didnt have to deal with in the 70's and 80's eh?

[Wolfman]

We allow strangers to grope our Mothers and daughters at the airport. Nothing surprises me these days as too many are willing to accept anything the gubmint tells us will make us safe.

[BSmack]

We allow strangers to grope our Mothers and daughters at the airport.

Sig worthy.

[R-Jack]

The moral of this story......don't do drugs.

[smackaholic]

I could see the case being made for searching his phone after being arrested for drug dealing as a cell phone is known to be a tool in commitnig said crime. I could not see them having the right to search your phone if you were pulled over for speeding.

[Screw_Michigan]

Keep those smartphones password protected.

[mvscal]

We allow strangers to grope our Mothers and daughters

:(

--Dan Vogel

[Dinsdale]

I'm a pretty diehard civil rights guy, and will always advocate erring on the side of overprotecting rights.

But I'm not seeing the problem. If a person is arrested (not merely pulled over), and the phone is in their possession, I think they call that "evidence."

If it's PW protected, then a warrant is obviously in order.

[Shlomart Ben Yisrael]

I'm a pretty diehard civil rights guy, and will always advocate erring on the side of overprotecting rights.

But I'm not seeing the problem. If a person is arrested (not merely pulled over), and the phone is in their possession, I think they call that "evidence."

If it's PW protected, then a warrant is obviously in order.

5th.

As in, Amendment.

[Shlomart Ben Yisrael]

Sorry. I forgot that your Constitution comes in extra absorbent 2-ply now.

[jiminphilly]

I'm a pretty diehard civil rights guy, and will always advocate erring on the side of overprotecting rights.

But I'm not seeing the problem. If a person is arrested (not merely pulled over), and the phone is in their possession, I think they call that "evidence."

If it's PW protected, then a warrant is obviously in order.

If the person was arrested at the time for using his phone in the commission of a crime then yes it's evidence (of the crime). Merely being in possession of a phone while you're making a drug buy isn't evidence of the crime. If a person is busted for dealing and or selling drugs and has car keys on his body, do the police have the right to search his/her car without a warrant?

The answer is no.

Based solely on the info provided in Onions post, what happened during the sting operation and subsequent arrest that led to the police to search his phone for additional information that was part of THAT crime?

[Dinsdale]

5th.

As in, Amendment.

WTF are you talking about?

The only part of the 5th that might even be in the same ballpark as this issue is the self-incrimination part, which doesn't even apply... unless they consider than any evidence found on an arrested person is suddenly off-limits, which would mean we could almost disassemble our court system. Having on-site evidence seized isn't an act of "self-incrimination" -- in fact, you have no control over the seizure, and you never handed it over in the first place.

Of course, if said phone is PWed -- then a warrant is in order, since it requires looking past what is plainly visible.


Maybe your completely ignorant ass should have gone with the 4th Amendment... which still doesn't cover it, but it would have at least made a little sense, and not been a completely laughable argument.

[Shlomart Ben Yisrael]

I meant in regards to being compelled to unlock any encryption on the phone to allow authorities to inspect the contents, slapnuts.

Calm down.

[Dinsdale]

I meant in regards to being compelled to unlock any encryption on the phone to allow authorities to inspect the contents, slapnuts.

Calm down.

Fair enough.

Anyone who gets intimidated into that is an idiot.

[Shlomart Ben Yisrael]

Anyone who gets intimidated into that is an idiot.

That's a rather harsh assessment.

You might feel differently if you were cable-tied and placed in a "stress position" in the basement of some police dungeon.

[Dinsdale]

Nah -- they don't do that shit around here... the cops just shoot you on sight.

[Shlomart Ben Yisrael]

The only time I ever endorsed police brutality was with the Luther/Toddowen Fiasco.

[trev]

I'm sooo glad I'm not worried about this new development in California.

[MgoBlue-LightSpecial]

speaking of the police........

My understanding is this video is being taken down by youtube in case it goes red x

What a fuckstick. You've got to have microscopic genitals to want to go into law enforcement.

[mvscal]

speaking of the police........

My understanding is this video is being taken down by youtube in case it goes red x

What a fuckstick. You've got to have microscopic genitals to want to go into law enforcement.

Nobody cares. It wasn't a mvscal getting beat down.

[Moving Sale]

Nobody cares. It wasn't a mvscal getting beat down.

I care.

[Diego in Seattle]

5th.

As in, Amendment.

WTF are you talking about?

The only part of the 5th that might even be in the same ballpark as this issue is the self-incrimination part, which doesn't even apply... unless they consider than any evidence found on an arrested person is suddenly off-limits, which would mean we could almost disassemble our court system. Having on-site evidence seized isn't an act of "self-incrimination" -- in fact, you have no control over the seizure, and you never handed it over in the first place.

Of course, if said phone is PWed -- then a warrant is in order, since it requires looking past what is plainly visible.


Maybe your completely ignorant ass should have gone with the 4th Amendment... which still doesn't cover it, but it would have at least made a little sense, and not been a completely laughable argument.

BZZZZZZZZZZZZZ!!!!!!

Correct answer would be the 4th amendment. The 5th only deals with giving testimony against oneself. Search & seizure is covered by the 4th.

I not entirely surprised by this decision by the CA supremes. I would be shocked to see the 9th District Court of Appeals come up with the same result.

I think most cops would go ahead & get an s/w for situations involving an arrest. Where it gets dicey is when a cop simply has enough cause to detain someone but not arrest. Not having control over the phone for more than the length of the detainment would present a problem with the preservation of any evidence on the phone at the time of the stop. It should be interesting to see how that shakes out in the courts.