The city of San Francisco is now answering to a lawsuit filed by the ACLU, following the police’s arrest and handling of homeless man named Bob Offer-Westort last January. Offer-Westort had set up a tent in the city’s Jane Warner Plaza, and found himself in handcuffs after refusing authority’s request to leave the premises. While in custody at the station, the police then confiscated his cell phone, and proceeded to look through all of his messages, without obtaining his consent. As Offer-Westort objected to the search, SFPD Officer Chambers responded with a statement (to effect of): “The California Supreme Court gives me the right after I arrest you.”

Is this indeed an absolute right though?  

In 2011, the California Supreme Court found that a search of an arrestee’s cellphone was not a violation of the Fourth Amendment (see People v Diaz). This decision has encountered rampant resistance from many organizations, including the ACLU, who filed the recent complaint on Offer-Westort’s behalf.

In the complaint, the ACLU reasons that Defendant’s Fourth Amendment rights were violated, since the search was conducted without obtaining a search warrant:

“By searching arrestees’ cell phones incident to their arrest without first obtaining a warrant, including when there is no reasonable basis to believe evidence of the crime of arrest would be found on the arrestees’ phone, Defendants have interfered with and continue to interfere with the exercise and enjoyment of the arrestees’ right to speech and associational privacy guaranteed by the California Constitution.”

Speaking to the SF Examiner about the case, attorney Marley Degner argued that a cell phone is not unlike a virtual home office, due to all financial and professional information found on any given device. She thus contests the government’s actions in the matter at hand, stressing the importance of search warrants in such circumstances:  

“Police need a warrant to search our home office… Our cellphones should be treated the same way.”

This cell phone search debate arises just months after Canada’s deliberation over mobile device boundaries, where the Court found police searches of cell phones permissible, unless the citizen had a passcode on his device.

It has become a certainty that one must really watch what they say online, but maybe people should also start rethinking some of their cell phone correspondences from now on too.