NMA Reboot: Cell Phones Prime Targets for Illegal Searches


This weekly post features recent news stories that highlight and update themes previously covered throughout NMA E-Newsletters and Alerts.

Editor’s Note: A Quebec man has been charged with obstruction after refusing to surrender his smartphone password to border officials upon returning to Canada from the Dominican Republic. The man, Alain Philippon, considered the demand an invasion of privacy and now faces up to $25,000 in fines and one year in jail. Cell phones are prime targets for law enforcement officials of whatever nationality looking for “evidence” of illegal activity. In the United States, motorists are particularly vulnerable to this kind of dubious search. In a disturbing 2011 decision, the California Supreme Court ruled that Fourth Amendment protections do not apply to cell phones or the information they contain.  Here’s more on that

 

NMA Email Newsletter: Issue #105: The People v. Gregory Diaz—Twisting the Fourth Amendment

In a disturbing decision issued in this new year, the California Supreme Court ruled 5 to 2 that the Fourth Amendment to the U.S. Constitution does not apply to cell phones and stored information on those phones.

Here is the exact wording of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Gregory Diaz was arrested in Ventura County on a drug charge. The police confiscated his cell phone during the arrest and used information from text messages saved on the phone as evidence to help obtain a conviction. The case reached the state’s highest court when the Diaz defense team appealed to have the text message information excluded because the police did not have a search warrant for the phone.

The majority opinion of the California Supreme Court allowed that cell phones are essentially a part of a person’s clothing. The U.S. Supreme Court had previously ruled in favor of warrantless searches of items immediately associated with an arrested person, such as clothing or cigarette packets.

But a cell phone is more than an accessory; it’s an open portal to highly personal information about the phone’s owner. That information may have nothing to do with a particular arrest, but no matter; based on the California ruling, the phone’s contents can be seized and reviewed without a legal warrant authorized by a judge.

Even though the Fourth Amendment is precise in stating the protection of the people against unwarranted searches and seizures, today’s courts are developing different legal interpretations. Last August, in Issue #86 of this newsletter series, we recounted the contrasting opinions by the U.S. Court of Appeals for the District of Columbia and the U.S. Ninth Circuit Court of Appeals on the Fourth Amendment issue of tracking a suspect’s movements via a GPS device attached to the vehicle of the unknowing suspect. The Diaz decision is even more profound in the depth and breadth of information that can be gathered without a warrant.

Unless the California Supreme Court ruling on Diaz is successfully appealed, the state’s drivers should be aware that the information on the cell phone in their possession is available to law enforcement without the sanction of a judge’s warrant. If other states follow the same precedent, the current bans on texting while driving in many jurisdictions will be among the least of motorists’ concerns.

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