January 4, 2011 By Wallin & Klarich

On January 3, 2011, the California Supreme Court ruled in People v. Diaz that a warrantless search of an arrestee’s cell phone contents did not violate the Fourth Amendment.

Appellant Gregory Diaz was arrested after participating in an alleged drug sale with a police informant. A detective searched Diaz’ person pursuant to Diaz’ arrest and found a cell phone. About 90 minutes after Diaz’ arrest, a deputy sheriff warrantlessly searched Diaz’ text message folder, which contained a text indicating that Diaz was selling the drug Ecstasy.

The Fourth Amendment protects people against searches and seizures. Thus, the main issue was whether it was “reasonable” to search an arrestee’s cell phone without a warrant.

The California Supreme Court ruled that the warrantless cell phone search was reasonable. The California Supreme Court reviewed previous cases where warrantless searches of an arrestee’s clothing and a crumpled cigarette package in an arrestee’s pocket were ruled not to violate the Fourth Amendment. The California Supreme Court found that since Diaz’ cell phone was “immediately associated” with his person, it may be searched without a warrant incident to a lawful arrest.

Diaz argued that, unlike a cigarette package or clothing, the sheer amount of personal information contained in a cell phone meant that an arrestee has a much greater expectation of privacy there, and that a warrant should be necessary to search the cell phone’s contents, especially if no danger exists that the cell phone’s data will be destroyed. However, the California Supreme Court reasoned that the character of the item to be searched was irrelevant: as long as the item is “immediately associated” with the arrestee’s person, it can be searched without a warrant.

The dissent argued that previous cases were decided before the advent of smart phones, and the United States Supreme Court could not anticipate the volume of personal information contained on a smart phone. Thus, the Court should not analogize the expectation of privacy in a crumpled cigarette package or clothing to a smart phone.

In addition, the dissent stated that courts have justified warrantless searches incident to arrest based on the arresting officer’s safety and preservation of evidence. The dissent observed that “there is apparently no ‘app’ that will turn an iPhone 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).” (2010 DJDAR 109, 117.) Plus, since Diaz was in custody, law enforcement had the phone in its possession, and the search occurred 90 minutes after the arrest, the potential for destruction of evidence was remote.

Clearly, the California Supreme Court’s ruling endorsed a profound invasion in an arrested person’s privacy. This decision reflects the United States Supreme Court’s approval for the growing erosion of defendants’ privacy rights, and defendants’ rights in general.

If you have been arrested, your person will most likely be searched. If you are arrested after just leaving your vehicle, your vehicle will likely be searched as well. Once you have been arrested, you cannot physically stop an officer from searching your vehicle, but your Southern California criminal defense attorney may be able to challenge the legal basis for your arrest or search. If the officer illegally searched or arrested you, any incriminating evidence found pursuant to the illegal search or arrest may potentially be excluded.

If a law enforcement officer ever asks for your consent to search you or your property such as your phone or your vehicle, calmly but clearly state that you do NOT consent. Officers are trained to ask for your consent to search you or your property, even if they believe they have a legal basis to search without asking for your consent. Your consent may override any illegal behavior by law enforcement, and evidence that would have been excluded may be used against you. Thus, it is in your best interest to clearly express your refusal to consent to any requested search.

If you have been arrested and accused of a crime, you will need an experienced Southern California criminal defense attorney who will vigorously represent you at all phases of trial. At Wallin & Klarich, we have helped people accused of a variety of crimes, from drug crimes to murder. Call us today at (888) 280-6839 or visit us at our website at www.wklaw.com. We will be there when you call.

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