Yesterday in People v. Diaz, the California Supreme Court ruled that under existing U.S. Supreme Court case law, the contents of cell phones are subject to search without a warrant, following arrest.
The facts are relatively simple. Diaz was arrested as a conspirator when he drove a drug dealer to a location where he made a sale. The police were listening in on the transaction via an informant wearing a microphone. After the sale, the police arrested Diaz and the seller. A search of Diaz revealed a cell phone.
Diaz was transported to the police station where he was interrogated. About 30 minutes after arrival, and 90 minutes after the police took the cell phone as evidence, an officer looked through the phone's text messages and found a text message which he believed showed evidence of the drug sale. After unsuccessfully fighting the search at the trial court level, Diaz pled to probation.
In ruling that the police were entitled to conduct a warrant-less search of Diaz's phone, Cal. Supreme noted that under the current Fourth Amendment line of cases from the U.S. Supreme Court (Robinson, Edwards, and Chadwick), the police were entitled to do so.
Cal. Supreme's hands were obviously tied because of the U.S. Supreme Court's line of cases. However, this example just showcases what I have talked about before; the cases of Fourth Amendment past are quickly resulting in what I believe are absurd results. The police are clearly able to search following arrest within the persons immediate control per Chadwick. But the concern for this exception was safety of the officers and a need to prevent the destruction of evidence. Those two concerns clearly did not exist in this case.
The police had already seized the phone - no safety issue; Diaz was already arrested - plenty of time to get a warrant. So it is hard to justify the result on those grounds. Justice Chin spends a lot of time explaining that under U.S. Supreme Court precedent, there is nothing preventing such a search incident to arrest. Justice Chin is completely right - but it is an absurd result.
The absurdity comes in based on the Sixth Circuit's decision regarding warrant-less email searches, which I find sound. I cannot image the Ninth Circuit coming to a different result than the Sixth, so we could have a situation in California where the police must obtain a warrant to view emails if the person has not been arrested, but once I'm arrested on any charge, everything contained on the phone, including the thousands of emails therein, are freely available to the police, so long as the person has their phone at the time of the arrest. And just the opposite - if one has no phone at the time of arrest, a warrant must be obtained. I fail to see the justification for such a rule.
The Fourth Amendment mandates that we have a right to be secure in our effects - but it seems Diaz only allows that so long as you do not carry your effects with you. Hopefully, the U.S. Supreme Court will be in a position to clarify soon.
