Enterprise Counsel Group, A Law Corporation
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Legal Advisory for All Cell Phone Users
January 3, 2011— California
There has been an important new legal development that anyone who carries a PDA or “smart phone” loaded with personal data should know about. According to a California Supreme Court decision handed down last week, if you are arrested and your phone is seized, the police no longer need a search warrant to “surf” through your personal information. This is because a cell phone, like clothing, is now considered to be “immediately associated with [the arrestee's] person.” As such, according to a majority of the California Supreme Court, police are “entitled to inspect” its contents without a warrant, even at a police station more than an hour and a half after the arrest took place “whether or not an exigency existed.” People v. Diaz, S166600, 2011 WL 6158 (Cal. Jan. 3, 2011).
Notably, two Justices disagreed. In a strongly worded dissenting opinion joined by Justice Carlos Moreno, Justice Kathryn Werdegar argued information stored on cell phones should not be examined without a warrant and warned that this ground-breaking decision sanctions searches that violate the U.S. Constitution's Fourth Amendment. Justice Werdegar further warned this decision gives "police carte blanche, with no showing of exigency, to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee's person."
Coincidentally, last week Justice Moreno announced his resignation from the High Court.
(949) 833 - 8550 or drobinson@enterprisecounsel.com.