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It’s been a long time since the typical cell phone was merely a phone – a portable version of the old rotary-dial instrument that used to be attached to your kitchen wall. Now cell-phones are personal computers, media-consumption platforms, personal organizers, and multi-function communication devices, permitting voice, video, text, and email communications. They contain a vast amount of data that most people would regard as confidential.
But to the California Supreme Court, they’re comparable to a pack of cigarettes.
This week, in People v. Diaz, the court upheld a drug conviction that resulted from a police officer’s search of the defendant’s cell phone following his arrest. The officer paged through the defendant’s text messages, found an incriminating text, confronted the defendant with it, and secured a confession. The court held that the search of the cell phone was a search incident to arrest – even though it took place more than 90 minutes after arrest and therefore did not require a warrant. In doing so, the court analogized searching the cell phone’s digital contents to searching a pack of cigarettes or clothes, two categories previously upheld by prior courts. (United States v. Robinson, 414 U.S. 218, 224 (1973).)
But a cell phone is not like an innocuous and static item like a pack of cigarettes. Moreover, manipulating a cell phone to search through data on it is not like looking through clothes, or a container, for obvious contraband or incriminating activity. As Justice Werdergar puts it in dissent:
The United States Supreme Court’s holdings on clothing and small spatial containers were not made with mobile phones, smartphones and handheld computers — none of which existed at the time — in mind. Electronic devices “contain” information in a manner very different from the way the crumpled cigarette package in Robinson contained capsules of heroin. (See Robinson, supra, 414 U.S. at p. 223.) Electronic devices, indeed, are not even “containers” within the meaning of the high court’s search decisions.
As the dissent points out, the majority’s logic suggests that police could read a diary carried by an arrestee, or even turn on and search a laptop computer. It’s a disturbing development – and a reason to tell our clients not to use a cell phone to send any information they don’t want read.