Police officers are free to review private and confidential information stored on your cell phone if the search is incident to an arrest in California. The Supreme Court of California recently upheld the warrantless search of a cell phone text message folder in People v. Diaz, 51 Cal. 4th 84 (2011). The decision places no restraints on the type or amount of data police officers may access when searching an arrestee’s cell phone.

Defendant Gregory Diaz allegedly purchased Ecstasy from a police informant. Police officers arrested Diaz, seized his cell phone from his pocket, and transported him to the sheriff’s station. Ninety minutes later, a police officer searched Diaz’s cell phone text message folder and found an incriminating message. The officer showed Diaz the message and Diaz admitted to the alleged sale of Ecstasy. Diaz later argued that the search of his phone’s text messages folder constituted an unlawful warrantless search.

The Supreme Court of California found the cell phone search a valid search incident to lawful custodial arrest. The court compared the search to previous U.S. Supreme Court cases that allowed the search of a cigarette box (United States v. Robinson, 414 US 218 (1973) and clothing (United States v. Edwards, 415 US 800 (1974) found on the arrestee’s person. The court rejected the argument that a warrantless search of property turns on the character of the property. The court found that the seizure and search was valid because of the reduced expectation of privacy resulting from the arrest. The court rejected the argument that cell phones’ ability to store vast amounts of personal information warrants heightened privacy interests. The court also found that there was no legal basis for distinguishing the contents of an item found on the person from the item itself.

In the dissenting opinion, Justice Moreno criticized the majority’s decision stating it “goes much further, apparently allowing 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. The majority thus sanctions a highly intrusive and unjustified type of search, one meeting neither the warrant requirement nor the reasonableness requirement of the Fourth Amendment to the United States Constitution.”

What does this case mean for those who carry smart phones or other electronic devices that store confidential or private information?

  1. Confidential and private information contained on electronic devices can be seized by law enforcement if you are arrested. Technological advancements have shrunk the size of storage devices and simultaneously increased their accessibility and storage capacity. iPhones, Blackberries, and other smart phones have become intertwined with business and personal information, including social networking. Diaz’s phone search involved text messages. However, this case arguably permits police officers to access confidential emails, documents, and voicemail messages that may contain private business or client information and personal information. Additionally, the character of the property seized is irrelevant. Thus, flash drives, digital cameras, and laptops found on the person may also be searched.
  2. Password protecting a device may not be enough. If a device requires a password for access, an arrestee may decide to refuse to provide police officers with his or her password. However, nothing prevents officers from seizing the device and using forensic software to copy and analyze the data and circumvent any password protection.
  3. Diaz may be headed to the U.S. Supreme Court. Unlike Diaz, a 2009 Ohio Supreme Court case found a warrantless search of an arrestee’s cell phone unlawful. (State v. Smith, 920 N.E. 2d 949 (2009)). While the Court denied Smith cert., it may take up Diaz in light of the current state split and the scarce case law on cell phone searches.
  4. Employers need to be cautious in determining what access to confidential and business information that they permit their employees to have in general, and specifically, through electronic storage devices, such as cell phones, laptops, thumb drives, etc., as sensitive data stored on such devices may be subject to search if the employee is later arrested.