Stopping carte blanche cellphone searches 

Thanks to a little-discussed state Supreme Court decision in January, the U.S. Constitution’s Fourth Amendment protections against “unreasonable searches and seizures” don’t necessarily apply in California any more. Yet few of our fellow citizens have been upset about this sad loss of our liberties, the state’s law-enforcement officials have been happy about the new latitude they’ve been granted to search our most personal information without limits, and efforts to roll back the decision are facing uncertainty — including a governor so closely allied with police unions that he could possibly veto a bill restoring lost civil liberties.

It’s understandable why the case, involving a run-of-the-mill arrest of a low-level drug dealer in Ventura County, hasn’t garnered too much attention. But the result of the decision is that if you are ever arrested for any reason, police can rummage through your cellphone and gather every piece of personal information and data available through that phone. Your most secret information — passwords, medical information, finances, love letters, photographs, Web searching history, etc. — are available for police inspection with no limits beyond the curiosity of the police, a real threat given that a smartphone really is a sophisticated computer.

The state high court found in People v. Diaz that police officials had every right to search, without a warrant, the personal effects of a person who has been arrested, including that person’s cellphone. A deputy sheriff arrested Gregory Diaz after he drove a drug dealer to a site where the dealer sold Ecstasy to a police informant. Diaz denied involvement in the deal, so after he was taken to the sheriff’s station officials searched his cellphone and found text messages that confirmed his involvement. Diaz sued to throw out the evidence found from the cell phone, arguing that the search was in violation of the Constitution.

The state Supreme Court found otherwise. California justices cited the U.S. Supreme Court, which has long allowed warrantless searches of people who have been arrested and taken into police custody because the arrested person might have a weapon that could be used against the officer or have evidence that would be quickly destroyed.

Unfortunately, the justices made no distinctions between items police find on an arrested person. How can justices construe that a cigarette box is no different from a smartphone, which contains unlimited files, photographs, voice recordings, contacts and even off-site file servers that are accessed through these hand-held computers?

The pre-Diaz rules didn’t impose any undue burden on police. If certain cellphone information was relevant to the case, then police were required to do what is typically done in free societies. They would ask a judge for a warrant. But post-Diaz police can just rifle through all the files looking for any information.

“Search of a modern mobile device is more like a search of an arrested person’s home or business than it is like a pack of cigarettes, or wallet,” explained an analysis of the decision by Sen. Mark Leno, D-San Francisco, who introduced SB914 to roll back the Diaz ruling. Leno’s bill, slated to come before the full state Senate after the Legislature’s recess, includes amendments to protect police, who are allowed to search a cellphone without a warrant in a case of imminent danger.

When this comes to the floor next month, California legislators, and the governor, will have a chance to restore the Fourth Amendment in California. How can this even be controversial?

Steven Greenhut is editor of www.calwatchdog.com; write to him at sgreenhut@calwatchdog.com.

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Steven Greenhut

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