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Jun062011

Guest Post: California Moves Closer To Banning Warrantless Device Searches

California Moves Closer To Banning Warrantless Device Searches 

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The following guest post is courtesy of Sonya Ziaja, a California attorney and co-owner of Ziaja Consulting LLC. Sonya writes regularly for LegalMatch's Law Blog and Ziaja Consulting's blog, Shark. Laser. Blawg.  I'm grateful to Sonya for her analysis, and share her hope that California will enact this law.

Last week, the California state Senate correctly discerned the differences between a smartphone and a pack of cigarettes.

Specifically, it voted overwhelmingly in favor of SB 914. This bill prohibits warrantless searches of portable electronic devices (e.g. cell phones, laptops, ipads) incident to lawful custodial arrests. The bill itself is uncomplicated and a simple solution to the policy problem created by the California Supreme Court's decision in People v. Diaz, which held that a police officer can search the contents of a cell phone after a lawful arrest without a warrant.

In deciding Diaz, the court purposefully ignored the nature of cell phones. Rather, the court asserted that cell phones are analogous to other mundane inanimate objects, namely cigarette boxes and clothes. The California Supreme Court relied primarily on two cases in Diaz, United States v. Robinson and United States v. Edwards. In Robinson, an officer arrested the defendant for a traffic violation. During the arrest and patdown, the officer felt an object in Robinson's pocket. Taking it out, the officer found the object was a pack of cigarettes. He then opened the pack and found heroine hidden in it. In Edwards, hours after the defendant was arrested, police took the defendant's clothing and examined it  for evidence. In both of those cases, officers did not need a warrant to search the objects.

In this case, the court concluded that Diaz's cell phone was sufficiently similar to Robinson's cigarette package and Edwards' clothing:

the cell phone “was an item [of personal property] on [defendant's] person at the time of his arrest and during the administrative processing at the police station.” In this regard, it was like the clothing taken from the defendant in Edwards and the cigarette package taken from the defendant's coat pocket in Robinson . . . .


While this analogy is factually correct, it is only a surface treatment and misses the underlying distinction between cell phones and cigarette packs. Cell phones and other portable electronic devices store massive amounts of personal information. As the dissent put it “Never before has it been possible to carry so much personal or business information in one's pocket or purse.” In addition to personal data, portable electronic devices can also contain sensitive information that would normally enjoy a heightened level of privacy protection, for example, attorneys' work product documents and journalist's notes.

From an anthropological perspective, cell phones and computers are more than ordinary objects. According to anthropologist Amber Case, we use these objects as out “external brains,” extensions of our thoughts and memories. If this is the case, perhaps searching the contents of a cellphone without a warrant is more akin to subjecting a defendant to a fMRI without a court order than to opening a box of cigarettes.

There is a significant difference between the nature of portable electronic devices and the nature of whatever else might be in your pocket. The California Senate recognized this when it passed SB 194. Hopefully, the California Assembly sees the distinction as well.

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