Tuesday, January 4, 2011

Smart Phones, Privacy and the 4th Amendment: New Worries for a New Year

The California Supreme Court, in the majority's decision in the case of People v. Diaz, issued January 3rd, has given privacy advocates a new worry for the new year. The majority rejected a 4th Amendment challenge to the reasonableness of a warrantless search of a cell phone text message folder in a drug arrest case. The majority opinion, written by Justice Chin and joined by Justices Kennard, Baxter, Corrigan and Retired Chief Justice Ron George, citing the Supreme Court's decision in U.S. v. Robinson (1973) 414 u.s. 218, 224, held that the phone's database, found on the person of the defendant, could be searched without a warrant because the search was "incident ot a lawful arrest". The rationale for this exception to the 4th Amendment's bar against warrantless searches is that that evidence might be destroyed or concealed by the defendant if the property remains "within his immediate control". Because a cell phone can be carried in a person's pocket or purse, the majority distinguished this case from U.S. v. Chadwick (1977) 433 U.S. 1, wherein a warrantless search of a 200 lb. footlocker was thrown out as violative of 4th Amendment rights.

Justices Werdeger and Moreno strongly dissented, arguing that today's smart phones are essentially mini-computers that can store vast amounts of personal data, the search of which violates privacy rights. Interesting case - it means that if you are arrested for a DUI for example, police have the right to search the entire database of your cellphone without a warrant. Seems wrong, and I think the dissent is right. U.S. District Court Judge Ilston has ruled to the contrary in a federal case, and the Ohio Supreme Court has also rejected such searches. The U.S. Supreme Court may see this one - stay tuned.

New Year's Resolution: Blog more! Happy New Year to all readers, new and old!

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