Just when you thought the police “had nothing on you,” they got wise and realized you had your smart phone in your pocket. Bingo! The text messages found on the Blackberry’s and iPhones of criminals can now help prosecutors build a case at 4G speeds. Gregory Diaz learned this that hard way after he was arrested by a Ventura Country deputy sheriff who witnessed what he believed to be an ecstasy deal in the back of Diaz’ car. When confronted by the officer about the alleged transaction, Diaz denied knowledge, but when the officer helped himself to Diaz’ latest text conversations regarding prices for pills, the drug dealer fessed up.
Diaz’ camp fought to suppress the evidence found in the officer’s search of the cell phone but the trial court, Second District Court of Appeal, and now the California Supreme Court held that it was in fact proper. In the recent 5-2 decision by the California Supreme Court, the texts and other information contained within cell phones became fair game for police to search without a warrant following the arrest of a suspect. The majority opinion concluded that “the cell phones [were] to be treated as personal property ‘immediately associated’ with the suspect’s person.” This characterization and subsequent decision did not go unchallenged by a dissent that argued that such information should not be subject to search without a warrant and that U.S. Constitution’s 4th Amendment was being violated.
The decision was based upon the doctrine of “search incident to lawful arrest,” which allows for officers to conduct a warrantless search of the arrestee and the area and objects in close proximity. Privacy advocates maintain that this ruling has gone too far and that the judiciary has opened the door for abuses that could not have been contemplated by the framer’s of the Constitution. In dissenting, Justice Kathryn Mickle Werdegar echoed the unease of many in describing the situation as allowing the 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.” Those in the dissent’s corner have made the practical argument that there is no need to search the phone immediately if it’s in police control; if the prosecution can convince a judge that they will probably find incriminating evidence, then a search can be conducted with a warrant.
Don’t be surprised if this decision is taken up by the Supreme Court of the United States in an attempt to clarify past decisions in the “light of modern technology.” But in the meantime, make sure you delete those incriminating texts.