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In California Supreme Court opinion of People v. Diaz, the Court held that law enforcement may open up your cell phone if it is found on your person during an arrest and may look at the contents without a warrant. In Diaz, the court reasoned that because the phone was found on the defendant’s person when he was arrested, the search was constitutional. This is yet another example of the law not keeping up with technology.

The Court found that the cell phone was conducted lawfully subject to a search incident to arrest, and thus it fell within the exception of the Fourth Amendment’s warrant requirement. Warrantless searches of arrestees and the area within their immediate control have been deemed constitutional by the U.S. Supreme Court, even if probable cause does not exist for officer protection or preservation of evidence. This Court analogized the situation to United States v. Robinson and compared the search of a phone to items such as a cigarette package or personal clothing. However, this reasoning fails to consider that a person’s cell phone now contains personal private information that a person has a reasonable expectation of privacy in, such as photos, documents, and messages. An inventory search of the contents of a phone is completely unnecessary when a person is arrested.

The Court also decided that since the cell phone was immediately on Diaz’s body at the time of the arrest and thus immediately associated with his person, this presented sufficient justification a search incident to arrest of the item. This reasoning also fails to consider that the contents of a cell phone do not create any immediate danger to officers and thus should be exempt from the immediate grabbable area search exception.

With so many people utilizing smart phones containing vast quantities of their personal information, this holding means that the police can access your information incident to a lawful arrest without waiting for a warrant. Until the U.S. Supreme Court issues an opinion regarding this issue, there is nothing stopping the police from looking through your data in phone for any type of arrest. Orange County Criminal Defense Attorney Scott D. Hughes recommends that you do not keep any personal private information on your cell phone until the Supreme Court renders its opinion as to the constitutionality of this decision.

Scott Hughes is a criminal defense lawyer in Orange County, California practicing in State and Federal Court.

Categories: Criminal Defense
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