Thanks to a little-discussed California Supreme Court decision, the U.S. Constitution’s Fourth Amendment protections against “unreasonable searches and seizures” don’t necessarily apply in California anymore. Yet few of our fellow citizens have been upset about this sad loss of our liberties, the state’s law-enforcement officials have been happy about the new latitude they’ve been granted to search without limits our most personal information, and efforts to roll back the decision face uncertainty – including a governor so closely allied with police unions that he might veto a bill restoring lost civil liberties.
It’s understandable why the underlying prosecution, involving a run-of-the-mill arrest of a low-level drug dealer in Ventura County, hasn’t garnered much attention. The result of the court’s decision, however, is that if you are ever arrested for any reason, police can rummage through your cell phone and grab every byte of personal information and data. Your most confidential information – passwords, medical records, finances, love letters, photographs, Web searching history, etc. – are open to police inspection with no limits beyond the curiosity of the police, a real threat given that a smart phone really is a sophisticated computer.
The state high court in January ruled 5-2 in People v. Diaz that police officials had every right to search, without a warrant, the personal effects – including the mobile phone – of a person who has been arrested. A deputy sheriff arrested Gregory Diaz after he drove a drug dealer to a site where the dealer sold Ecstasy to a police informant. Diaz denied involvement in the deal. After he was taken to the sheriff’s station, officials searched his phone and found text messages that confirmed his involvement. Diaz sued to bar the text-message evidence, arguing that the search violated the Constitution.
The state Supreme Court found otherwise. The California justices cited U.S. Supreme Court rulings that long have allowed warrantless searches of people in custody because the arrestee might have a weapon or evidence that would be quickly destroyed. “We hold that the cell phone was ‘immediately associated with [the defendant’s] person’ and that the warrantless search of the cell phone therefore was valid,” the court ruled, holding that a cell phone is a form of personal property no different than a cigarette package found in an arrestee’s pocket.
The latter point turns an otherwise ho-hum case about a low-level drug dealer into a blockbuster assault on Californians’ most basic freedoms. The justices made no distinctions among items police find on an arrestee. How can justices construe that a pack of cigarettes is no different from a smart phone, which can contain voluminous files, photographs, voice recordings and contacts? These hand-held computers can even access off-site file servers.
Prior to the Diaz ruling, the rules didn’t impose any undue burden on police. If certain cell-phone information was relevant to the case, police were required to do what is typically done in free societies. They would ask a judge for a warrant. Now, however, if you are, say, arrested for public drunkenness, the police can take your smart phone and poke through all the files, looking for any information that could implicate you in any crime, or simply embarrass you.
“[A] search of a modern mobile device is more like a search of an arrested person’s home or business than it is like a pack of cigarettes, or wallet,” states an analysis of the decision by Sen. Mark Leno, D-San Francisco, who introduced Senate Bill 914 to roll back the Diaz ruling. Leno’s bill, slated to come before the full Senate after the Legislature’s summer recess, includes amendments to protect police, who are allowed to search a cell phone without a warrant in cases of imminent danger.
Police unions and their allies argue that arrestees will quickly destroy evidence from their phones. That’s not true because police can immediately seize an arrestee’s phone and hold it until they get a warrant. Under SB914, they just can’t go on fishing expeditions.
Basically, the police unions and their supporters don’t want to give up their expanded powers. The law-and-order crowd, including Sen. Tom Harman, R-Huntington Beach, whose office told me that he accepts the “law enforcement explanation,” wants us to blindly trust government officials. But we know from reading news stories that governments abuse their power. Police officials can, and do, misbehave.
Government agencies do not have an exemplary record with protecting personal information. I’m tired of this “If you’ve done nothing wrong, you have nothing to fear” rationalization, which is the mentality of a police state.
The decision allows police agencies to evade the state’s shield law for journalists, which protects disclosures of sensitive information. Now, if an officer arrests a reporter, for any reason, his department has access to all the files and newsroom servers available on the reporter’s smart phone.
But anyone with a smart phone – not just journalists – should support the Leno bill.
The Fourth Amendment assures us: “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.” This was a fundamental concern of America’s founders. In her dissent in the Diaz case, Justice Kathryn Werdegar (then-Justice Carlos Moreno concurred) decried the decision, which allows “police carte blanche, with no showing of exigency, to rummage at leisure through the wealth of personal and business information… . The majority thus sanctions a highly intrusive and unjustified type of search, one meeting neither the warrant requirement nor the reasonableness requirement of the Fourth Amendment.”
When this comes to the Senate floor next month, California legislators, and the governor, will have a chance to restore the Fourth Amendment in California. How can this even be controversial?