California Law on Police Searches of Smartphones

Reacting to a decision of the state's Supreme Court, the California legislature recently passed a bill that will require law enforcement to get a warrant before searching "information in a portable electronic device" carried by a person who's been arrested. The legislation is careful to state that it does not curtail the ability of the police to rely upon "established exceptions to the warrant requirement." Instead, the legislation is intended to trump the California Supreme Court's decision in People v. Diaz. I wrote about that case in a guest post on GeekWire that is also here in the archives of this blog. Purporting to interpret the US Constitution, the court had found a warrantless search of a suspect's phone fell under an exception to the normal warrant requirement – the exception for searches "incident to a lawful custodial arrest." Amazingly, the legislation rebuffing the court is short and easy to understand. And it pinpoints exactly the issue California's high court missed: cell phones are not "incidental" to a person, like a pack of cigarettes or items you might carry in your jeans or a shirt pocket. Rather, as the legislation states, phones can be a link to a potentially unlimited trove of personal information about a suspect: "These devices are capable of and encourage the storing of an almost limitless amount of personal and private information. Commonly linked to the Internet, these devices are used to access personal and business information and databases that reside in computers and servers located anywhere in the world." That's exactly up to date. Maybe the justices on the California high court need to buy new phones! Image sources: Oracio Alvarado and Osman Kalkavan.

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