Tuesday, February 1, 2011

In California the Police Can Search Your Cell Phone

So lets say you go out on a Friday night, party a little too hard, things happen and you end up getting yourself arrested. Back at the police station after your arrest, the police go through your pockets and grab your cell phone. They can't just start rummaging through it can they? Reading your texts? Looking at your pictures? Maybe checking out your what's on your calendar? The answer to these questions should be absolutely not! At least not without a search warrant and some legitimate reason. Unbelievably, the California Supreme Court disagrees.

In the recent case of People v. Diaz, 2011 DJ DAR 109; DJ 1/4/11, the Court held that an item "immediately associated with the defendant's person" can be lawfully searched incident to an arrest. Without a warrant. So when you get arrested with your cell phone in your pocket, the police do not need a warrant to search through the phone's contents.

In Mr. Diaz's case, he was arrested for suspicion of selling ecstasy. About 90 minutes later at the police station the officers seized his cell phone and started reading his text messages. They then confronted Mr. Diaz with a message they found, which ultimately led him to admit to selling ecstasy. There was no warrant and the police didn't have any specific reason to believe there was any evidence in the phone. Mr. Diaz's lawyers tried to suppress the information from the phone that led to his admission. The Supreme Court of California's answer, sorry the phone was "immediately associated with his person" so the police were perfectly within their rights to search its contents subsequent to his arrest. So much for your protection from illegal searches and seizures.

The moral of this story..... (1) Don't get arrested. If that doesn't work then, (2) Try to avoid keeping obviously incriminating items in your phone. Pictures of you engaging in illegal activity or text messages discussing drug use don't need to be saved in your cell phone.

Also, keep in mind that in Mr. Diaz's case the cell phone was an item of personal property on his person at the time of his arrest. I would argue that a cell phone not in your pockets or somehow physically connected to your body is no longer "immediately associated" with your person and therefore if the police want to see what's in it they still need a warrant from a judge.

This is a terrible decision that I believe contradicts federal constitutional law. Maybe one day it will be overturned by the U.S. Supreme Court. In the meantime, keep in mind that all that private stuff on your cellphone isn't quite as private as you would think.

[Please note that nothing in this post constitutes the formation of an attorney client relationship. Further, any commentary contained herein is provided strictly for entertainment purposes and should not be relied upon or substituted for professional legal advice.]