California Governor Allows Warrantless Searching of Cell Phones

California Governor Allows Warrantless Searching of Cell Phones

Posted By Mark Raymond McDonald || 26-Oct-2011

Here's another reason to password-protect your mobile phone: Governor Brown just recently vetoed a bill that requires a court-ordered warrant in order to search mobile phones upon arrest. This means that if you get arrested in the state of California, the arresting officer can search your smartphone — which gives him access to emails, call logs, texts, location data, banking apps, and more — without needing a warrant.

Governor Jerry Brown says the issue is too complicated for him to make a decision about and has upheld the supreme court's recent decision in People v. Diaz on warrentless searches that include mobile phones.

This January in People v. Diaz, the Supreme Court of California affirmed the Court of Appeals decision that a warrantless search of the text message folder on an arrested person’s phone was valid as incident to a lawful custodial arrest. The facts of this case are as follows: Diaz was arrested after selling Ecstasy to a police informant posing as a drug purchaser. Upon arrest, Diaz’s cell phone was seized and placed into evidence. After Diaz was interviewed in custody, Senior Deputy Sheriff Victor Fazio looked through Diaz’s cell phone text messages and found a text detailing a sale of Ecstasy. Diaz was charged with selling a controlled substance. Diaz pleaded not guilty and moved to quash the information gained from the search of his text messages, alleging such a warrantless search of his cell phone violated the Fourth Amendment. The trial court denied the motion, reasoning the search was incident to the arrest. The Supreme Court of California affirmed. The primary issue was whether a cell phone is considered property incidental to a person and therefore searchable without a warrant or instead a pathway to personal data which consequently necessitates greater Fourth Amendment protection.

Password-protecting your smartphone isn't just a good idea in everyday practice, but it will also require an arresting officer to obtain a warrant in order for you to hand over the password.