Forget about the Door…Lock Your Cell Phones

Rain forests and beaches aren’t the only places that should worry about erosion…the Fourth Amendment has cause to be concerned following a decision by the California Supreme Court which permitted an officer’s search of a suspect’s cell phone texts nearly 90 minutes after the suspect was arrested.

The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. The Fourth Amendment further states that no warrants shall issue absent probable cause. Warrantless searches are therefore per se unreasonable, and subject only to a few exceptions. One of those exceptions is known as a “search incident to a lawful arrest.” Officers are permitted to conduct prompt, warrantless searches of the suspect’s person following arrest in order to check for weapons or for evidence that may be concealed or destroyed.

In People v. Diaz, Defendant Diaz was arrested following an officer’s observation that Diaz had participated in a controlled drug buy. Diaz was charged with being a co-conspirator in the sale of drugs. Officers found drugs on Diaz, and also seized his cell phone. One of the officers interviewed Diaz. He denied having knowledge of the drug buy. After the interview, the officer looked at Diaz’s cell phone text message folder and found a message that the officer believed to be a reference to the amount of drugs found on Diaz, as well as the price of the drugs. The officer showed the message to Diaz, and he then admitted to participating in the sale.

The California Supreme Court upheld the search of Diaz’s cell phone. The Court noted that the U.S. Supreme Court had allowed previous warrantless searches of any personal property that was “immediately associated” with a suspect, such as clothing or a pack of cigarettes. The Court compared a cell phone to a suspect’s clothing, and ruled that if a cell phone was found on a suspect’s person, then the cell phone’s contents can be searched following a lawful arrest.

Before we discuss what this could mean for folks who are pulled over on suspicion of DUI, keep in mind that the Court utterly failed to grasp cell phone technology. People store vast amounts of information on cell phones…some of it highly personal…as cell phones are now more similar to mini-computers than devices used for simply making a phone call. Cell phones contain more than texts…there are e-mails, photos, videos, documents, notes. And for now, California law allows officers to search all of it without a warrant if the phone is seized following a lawful arrest. Keep in mind that this is only the law in California, but now that California’s highest state court has allowed it, officers in other jurisdictions…like Maryland and the District of Columbia…may follow suit and begin seizing and searching cell phones after arresting suspects.

So how can a driver protect against this intrusion if the driver is pulled over? The answer is a simple one. Lock your cell phones. Password-protect them. Do not leave them open to the chance that an officer may decide to arrest you, search you, and then search your cell phone. What if there is a text in there where you said something like “looking forward to grabbing some drinks tonight,” or “can’t wait to hit the party?” You can bet that the prosecutor in your case will try to use those texts against you. If your phone is password protected, the officer can’t get to any information stored on it. If the officer asks you for the password, you simply decline to answer. After all, you have a Fifth Amendment right not to say anything to the officer from the moment you are stopped.

Of course, the most obvious protection is to avoid driving altogether if you believe you might be impaired. However, a driver may legitimately believe that the driver is not impaired, but ends up being stopped anyway by an officer who does believe the driver is impaired…despite evidence to the contrary. It is in these situations where an aggressive officer may seek to use those potentially damaging texts. The driver may have texted about going out to party, but only ended up having one glass of wine 4 hours before getting behind the wheel. Yet the officer and the prosecution will no doubt use the “party” text to bolster their case that the driver was impaired.

The important thing for drivers is to avoid making it an issue at all. That means staying off the road altogether, or otherwise ensuring that the driver’s cell phone won’t be searched if the driver is stopped and arrested. Password protection will keep the driver’s cell phone information out of the officer’s and the prosecution’s hands entirely. Hopefully other courts will decline to follow California’s rationale and offer more than password protection…Fourth Amendment protection.

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