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California Supreme Court Court OKs searches of cell phones without warrant
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California Supreme Court OKs searches of cell phones without warrant
Bob Egelko, Chronicle Staff Writer
Tuesday, January 4, 2011
(01-03) 16:25 PST SAN FRANCISCO — The California Supreme Court allowed police Monday to search arrestees’ cell phones without a warrant, saying defendants lose their privacy rights for any items they’re carrying when taken into custody.
Under U.S. Supreme Court precedents, "this loss of privacy allows police not only to seize anything of importance they find on the arrestee’s body … but also to open and examine what they find," the state court said in a 5-2 ruling.
The majority, led by Justice Ming Chin, relied on decisions in the 1970s by the nation’s high court upholding searches of cigarette packages and clothing that officers seized during an arrest and examined later without seeking a warrant from a judge.
The dissenting justices said those rulings shouldn’t be extended to modern cell phones that can store huge amounts of data.
Monday’s decision allows police "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," said Justice Kathryn Mickle Werdegar, joined in dissent by Justice Carlos Moreno.
They argued that police should obtain a warrant – by convincing a judge that they will probably find incriminating evidence – before searching a cell phone.
The issue has divided other courts. U.S. District Judge Susan Illston of San Francisco ruled in May 2007 that police had violated drug defendants’ rights by searching their cell phones after their arrests. The Ohio Supreme Court reached a similar conclusion in a December 2009 ruling in which the state unsuccessfully sought U.S. Supreme Court review.
The Ohio-California split could prompt the nation’s high court to take up the issue, said Deputy Attorney General Victoria Wilson, who represented the prosecution in Monday’s case.
"This has an impact on the day-to-day jobs of police officers, what kind of searches they can conduct without a warrant when they arrest someone," she said. "It takes it into the realm of new technology."
The U.S. Supreme Court ruled in June that a police department did not violate an officer’s privacy when it read text messages he had sent on a department-owned pager.
Although the court has never ruled on police searches of cell phones, Wilson argued that it has signaled approval by allowing officers to examine the contents of arrestees’ wallets without a warrant.
The defense lawyer in Monday’s case was unavailable for comment.
Monday’s ruling upheld the drug conviction of Gregory Diaz, arrested in April 2007 by Ventura County sheriff’s deputies who said they had seen him taking part in a drug deal.
An officer took a cell phone from Diaz’s pocket, looked at the text message folder 90 minutes later, and found a message that linked Diaz to the sale, the court said. Diaz pleaded guilty, was placed on probation and appealed the search.
The ruling can be read at sfgate.com/ZKUI.
http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/01/04/BA5N1H3G12.DTL
This article appeared on page C – 3 of the San Francisco Chronicle
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