Oct 082011
 
 October 8, 2011  Court, Surveillance

The other day, SCOTUS passed on the chance to decide whether a warrant is needed to search cell phone contents if someone has been arrested.   That leaves a September decision by the California Court of Appeal that affirmed the right of law enforcement to search the cell phone even if you have just been pulled over for a traffic violation.  The Newspaper.com explains the background of California v. Nottoli and the appellate court’s reasoning:

 The appellate court, however, only agreed that the phone search was unlawful as part of the inventory process for the automobile. The judges insisted that the search was valid as part of the arrest process in which no warrant is needed to examine items related to officer safety and the preservation of evidence, as expanded by the 2009 US Supreme Court ruling in Arizona v. Gant (view ruling).

“In sum, it is our conclusion that, after Reid [Nottoli] was arrested for being under the influence, it was reasonable to believe that evidence relevant to that offense might be found in his vehicle,” Justice Franklin D. Elia wrote for the three-judge panel. “Consequently, the deputies had unqualified authority under Gant to search the passenger compartment of the vehicle and any container found therein, including Reid’s cell phone. It is up to the US Supreme Court to impose any greater limits on officers’ authority to search incident to arrest.”

A few weeks later, the Supreme Court declined to consider the Diaz case.

So law enforcement should just arrest everyone so they can search their cellphones without a warrant because by golly, the arrestee might destroy evidence of a crime. Again, I ask, if there’s some suspicion or concern, why not just take possession of the phone and seek a warrant?

The California Court of Appeal did not do right by us and the Fourth Amendment. Congress and the courts really need to recognize that a person’s effects stored on their cell phone should have the same protection as effects in their home. Yes, there may be some truly exigent circumstances, but for the most part, these searches really should require a warrant.

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