No Easy Fix to Cell Phones and Warrantless Searches

Photo titled "Day 8" courtesy of Nathan Brown on Flickr

On January 3, 2011, the Supreme Court of California held that law enforcement officers did not violate a defendant’s Fourth Amendment right when they looked through his cell phone’s text message folder 90 minutes after being taken into custody for drug charges. See People v. Diaz, 51 Cal.4th 84, 93 (2011). In a reaction to the court’s decision in Diaz, the California Legislature recently passed a bill that requires law enforcement officers to obtain a warrant before searching a defendant’s cell phone. The bill passed unanimously in the State Assembly. Governor Jerry Brown has until October 9th to sign the bill into law. What makes this bill even more important is that the United States Supreme Court denied certiorari to the Diaz case for its new term that began on October 3, 2011. As such, this bill, or similar piece of legislation, represents the only potential change to California law in the near future.

The issue at hand for the Diaz court was whether the defendant’s cell phone in these circumstances was “personal property” associated with him, which would allow a warrantless search incident to the arrest, or whether the cell phone was not associated with him, which would require a search warrant absent very narrow exceptions. The court determined that the cell phone was personal property associated with the defendant because the cell phone was on his person during the arrest and administrative process at the police station, regardless of the cell phone’s ability to hold vast amounts of information.

There is no question that cell phones do much more than just facilitate phone calls – they are readily becoming the primary means that people check their e-mail, surf the internet, and communicate with one another. Moreover, cell phones now also hold a significant amount of personal information due to vastly improved capabilities, such as electronic documents, passwords, bank accounts, and even recently visited locations. Proponents of this bill and other similar legislation argue that the people of California need such an explicit limitation to protect themselves from “Big Brother.”

While this fear is not unfounded, signing such a bill into law would be a tremendous mistake, because it would effectively prevent the Fourth Amendment jurisprudence from evolving to fit the needs of developing technology. There are many questions that should be answered before the California legislature, or any state legislature for that matter, signs such a bill into law. The Diaz ruling is very fact specific and does not represent a “blank check” that allows all police officers to search any and all cell phones. The court specifically noted that the cell phone in this circumstance acted as personal property associated with the defendant because the defendant had the phone on his person during the arrest and administrative process at the police station. As such, there may be a completely different outcome if the cell phone is somewhere besides on the defendant’s person, such as in a vehicle’s glove compartment or even cup holder.

Despite the many questions and the difficulty in waiting for these answers, drastically shutting the door to any and all warrantless searches of cell phones is not wise because such legislation aims to place an absolute right of privacy in individuals’ cell phones. This attempt to grant cell phone users an absolute right against any and all warrantless searches destroys the delicate balance that Fourth Amendment jurisprudence has always aimed for. This bill effectively ignores decades of precedent in establishing exceptions to the general requirement of search warrants, such as exigent circumstances or search incident to arrest.

Although this is not the easiest answer and no doubt the least popular one, the judiciary is the government branch that should decide the Fourth Amendment’s evolution as to warrantless cell phone searches rather than politicians. Simply signing a bill that bans all warrantless searches altogether is a naïve attempt to simplify an area of law that, for better or for worse, requires constant evaluation to properly evolve and protect the delicate balance between law enforcement and individuals.