In a rather shocking opinion yesterday brought to light by MSNBC's Bob Sullivan, the California Supreme Court has ruled that police can read the messages on your cellphone if they've seized it from you upon arrest. [I've revised this language from the initial publication.]
Let me take a step back to review the facts, some of which I've gleaned from the opinion below: Gregory Diaz drove his friend Lorenzo Hampton to meet someone in Thousand Oaks. Hampton sold some Ecstasy to that someone in the backseat of the car, and the buyer happened to be, oops!, an undercover police informant. The police arrested his friend after the buy, plus Diaz himself as a co-conspirator. The police take him back to the sheriff's station and seize his cell phone, as well as a small amount of pot in his pocket.
Diaz tells the officer he didn't know there was going to be a drug deal. But after the interview, Officer Fazio looked at the cell phone's text message folder and discovered a message from Diaz to Hampton that said '6 4 80.' "Based on his training and experience," the majority explains, "Fazio interpreted the message to mean '[s]ix pills of Ecstasy for $80.' Offcier Fazio showed the message to Diaz, who then admitted participating in the sale of Ecstasy."
Diaz was charged with selling a controlled substance, pleaded not guilty and moved to suppress the fruits of the cell phone search —the text message and the statements he made when confronted with it — arguing that the warrantless search of the cell phone violated the Fourth Amendment
As you may recall, in 2009 the Supreme Court held that after you've been arrested and are a safe distance from your car, the police can't search it for evidence without a warrant unless it's reasonable to believe the vehicle contains evidence of the offense for which you've been arrested. And under California law, as the Court reviews, if they pat you down during an arrest and find a cigarette package -- well, they can open up the package to seize the heroin capsules inside. And if you're arrested for breaking into a post office, they can make you change your clothing (even 10 hours later) and then search your clothes for paint chips matching the scene of the crime. And this, the Court held, was kinda like that:
We hold that the cell phone was “immediately associated with [defendant's] person” and that the warrantless search of the cell phone therefore was valid. As the People explain, the cell phone “was an item [of personal property] on [defendant‟s] person at the time of his arrest and during the administrative processing at the police station.” In this regard, it was like the clothing taken from the defendant in Edwards and the cigarette package taken from the defendant‟s coat pocket in Robinson.... Because the cell phone was immediately associated with defendant‟s person, Fazio was “entitled to inspect” its contents without a warrant, whether or not an exigency existed.
And however private you think your cellphone or smartphone is (and how much personal data it contains, once you're arrested it doesn't matter -- they can seize it, and "open and examine what's inside."
[Though the Court adds in a footnote: "The People do not contest that defendant had a protected expectation of privacy in the contents of his text message folder. For purposes of this opinion, we therefore assume defendant had such an expectation, and do not consider the issue."]
What's the problem? Two Justices -- Werdegar and Moreno -- explained in dissent that the amount of information potentially obtainable is enormous. Y'all know that already, so let's skip ahead:
Warrantless searches incident to arrest are justified by the important interests in officer safety and preservation of evidence. “When a custodial arrest is made, there is always some danger that the person arrested may seek to use a weapon, or that evidence may be concealed or destroyed. To safeguard himself and others, and to prevent the loss of evidence, it has been held reasonable for the arresting officer to conduct a prompt, warrantless search of the arrestee's person and the area “within his immediate control”—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.‟ ”
Weapons, of course, may be hidden in an arrestee‟s clothing or in a physical container on the person. But there is apparently no “app” that will turn an iPhone or any other mobile phone into an effective weapon for use against an arresting officer (and if there were, officers would presumably seek to disarm the phone rather than search its data files). Clearly, any justification for the warrantless search of a mobile phone must come from the possibility that the arrestee might, during the arrest, destroy evidence stored on the phone. Once a mobile phone has been seized from an arrestee and is under the exclusive control of the police, the arrestee, who is also in police custody, cannot destroy any evidence stored on it. ... As the majority notes, no evidence of exigency was presented in this case —no evidence that the text messages on defendant‟s phone were subject to imminent loss and could not, in any event, be obtained from defendant‟s cellular provider.
Got that? Once they take away your smartphone, it's theirs. You can't wipe it out, so if they really want to see what's inside there's no reason not to obtain a valid warrant first.
Or, as Jonathan Turley laments:
These warrants can be obtained literally in a matter of minutes in some circumstances but can certainly be secured in a short time. Unfortunately, this is not the Supreme Court that I would want to review this case. The Court has left the fourth amendment in tatters and this ruling is the natural extension of that trend. 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 cellphone files — the modern equivalent of letter and personal messages. For people insisting that the text of the Constitution must control their interpretations, it takes a lot to ignore the language of the fourth amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.