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California Supremes: Text messages subject to warrantless searches

One of the heavy hitters has weighed in on the issue of whether police need a warrant to examine the text messages on an arrested  suspect’s cell phone.

Monday, the California Supreme Court ruled that, because an alleged drug dealer’s cell phone was “immediately associated” with his person, police were “‘entitled to inspect’ its contents without a warrant at the sheriff’s station 90 minutes after [his] arrest, whether or not an exigency existed.”

The decision came in the case of Gregory Diaz. On April 25, 2007, Ventura County Deputy Sheriff Victor Fazio witnessed a police informant’s controlled purchase of Ecstasy.

The drug sale occurred in the back seat of a car driven by Diaz. Immediately after the sale, Fazio stopped the car and arrested Diaz and his backseat passenger. Six tabs of Ecstasy were seized in connection with the arrest.

Fazio transported Diaz to a sheriff’s station, where a detective took the suspect’s cell phone and gave it to Fazio. The deputy interviewed Diaz at which time he denied having any knowledge of the drug transaction.

After the interview, Fazio looked at the cell phone’s text message folder and discovered a message that said “6 4 80,” which in the deputy’s experience meant “Six pills of Ecstasy for $80.”

Minutes later, Fazio confronted Diaz with the text message at which time the suspect admitted to participating in the sale of Ecstasy.

Diaz argued that the warrantless examination of his text messages violated the Fourth Amendment. The lower courts rejected Diaz’s argument and the case wound its way up to the California Supreme Court.

The state high court concluded that the examination of the cell phone’s contents was plainly authorized under the U.S. Supreme Court’s decision in United States v. Edwards that police may search an arrestee’s clothing without a warrant, as well as the Court’s decision in United States v. Robinson permitting the search of a small physical container like a crumpled cigarette package taken from the person of an arrestee.

The California Supreme Court explained that Diaz’s “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….” (California v. Diaz

The 5-2 decision featured a stirring dissent by Associate Justice Kathryn M. Werdegar, who made the point that greater Fourth Amendment protections must be afforded the contents of cell phones and other handheld electronic devices simply because of the amount of personal information such devices may store.

“Because the data stored on a mobile phone or other electronic device is easily distinguished from the arrestee’s actual person, and in light of the extraordinary potential for invasion of informational privacy involved in searching data stored on such devices, I would hold mobile phones, smartphones and handheld computers are not ordinarily subject to delayed, warrantless search incident to arrest,” the justice wrote.

To this point, Associate Justice Ming W. Chin responded in his majority opinion that upholding the search in Diaz’s case was clearly consistent with the Edwards/Robinson precedents.  

“Contrary to the dissent’s assertion, the rationale of these decisions — that a delayed search of an item of personal property found upon an arrestee’s person no more imposes upon the arrestee’s constitutionally protected privacy interest than does a search at the time and place of arrest — fully applies to the delayed search of defendant’s cell phone,” Justice Chin said.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

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