Privacy, cell phones and police searches – lock up your phones!

The United States Constitution protects you from unreasonable searches and seizures.  Under the Fourth Amendment, the police must either have a search warrant or some recognized exception to be able to legally search (and therefore gather evidence to be used against you).

One of the exceptions is a search “incident to an arrest.”  Since 1973, the United States Supreme Court ruled that the police, upon a lawful arrest, are authorized to search a person, including their clothes, any containers (purses, backpacks, briefcases, etc.) at the same time as the arrest.  Sounds logical.  The rationale is that the police should be authorized to search you to make sure you don’t have a weapon or contraband before they take you into a jail facility.  Makes sense, right?  Sure.

One of the basic requirements used to be that the search had to be done “contemporaneous with” the arrest – that is, at the same time as the arrest.  In the recent case of People v. Diaz, the police stopped Diaz for his involvement in a drug deal and arrested him.  A detective then looked through Diaz’s cell phone and found a text message that the detective took to be a message regarding a drug transaction.  When confronted with this evidence, Diaz confessed to dealing in drugs.

The issue became – was this search of Diaz’s phone done 90 minutes after his arrest while safely back in the police station “incident to arrest”?

In a rather convoluted leap of logic, the California Supreme Court decided that the phone was “immediately associated” with Diaz and therefore subject to being searched under the “incident to arrest” exception.

Huh?

What about the idea behind those kind of searches that was to look for weapons or contraband being brought into the jail?  I assume the police weren’t going to let Diaz have his cell phone with him while in the cell, so what danger did his cell phone pose?  Diaz certainly had an expectation of privacy in the contents of his cell phone, didn’t he?  Why didn’t the police need to get a warrant?

The Court wasn’t unanimous on this one.  In a vigorous dissent, two Justices denounced the ruling as going too far and unreasonably invading a person’s privacy rights.

Would it really be too much to ask that the police justify the search of the phone?  It wasn’t going anywhere, so there was no need to rush in and search.  Couldn’t they have applied for a search warrant?

Sometimes, judicial logic and the expansion of exceptions to the Constitution leave me scratching my head, but the ruling also sends an important message:  If you have a smartphone (iPhone, Android, Blackberry, Palm, Windows, etc.), learn how to use any locking features it has.  Password protect it.   Yep, there’s an app for that.

While you’re at it, password protect your laptop, pocket organizer and anything else that may have data on it that you don’t want anyone to see.  Apparently, if you’ve got it near you, it’s fair game if you’re arrested.

And when asked for the password, keep your Fifth Amendment right to silence in mind.  If you give the password, you’re admitting you have access to whatever is on there, so even admitting the item is yours or knowing the password could be against your best interest.

And with every search issue, it’s up to the prosecution to justify the police’s actions.  Let me know if you want to discuss your case and the search issues involved.

Joe Dane

info@joedane.com

(714) 532-3600

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