Litigation Support

On January 3rd, the California Supreme Court signed off on a warrantless search of a cell phone belonging to Gregory Diaz, who had been arrested and charged with being a coconspirator in the sale of drugs.

The story got a lot of play, largely because many media sources failed to include the fact of the arrest in their headlines so the viral tidal wave that followed was often based on a misconception that any kind of warrantless cell phone searches by police were permitted.

Specifically at issue here was the Deputy Sheriff's retrieval, about 12 hours after the arrest, of a text message which said "6 4 80," which he interpreted (undoubtedly correctly) to mean "six pills of Ecstasy for $80." When confronted with the evidence, Diaz then admitted his participation in the drug sale and was charged with selling a controlled substance. He pleaded not guilty and moved to suppress the cell phone evidence and his admissions based on a purported violation of the Fourth Amendment.

The trial court found no violation and Diaz then pled guilty to transportation of a controlled substance. He petitioned for review, and the case ultimately wound up in the lap of California's Supreme Court. One of the exceptions to the Fourth Amendment is a search incident to an arrest, where the search looks for weapons, means of escape or evidence of a crime. Law enforcement is permitted to search an arrestee's person as well as the area within the arrestee's immediate control. And yes, there is precedent that these searches can take place substantially after the arrest.

In the 5-2 decision, there is a spirited dissent which believes that rummaging at leasure through the private data a cell phone contains should require a warrant. But the majority carried the day, and we now have a split of opinion (even in CA) and with an Ohio court which has found that a warrant IS required.

It seems likely that the Supreme Court may have to speak on this thorny issue - it has previously declined to do so, but if this rift continues, we're going to need an authoratative decision.

E-mail: snelson@senseient.com       Phone: 703-359-0700

www.senseient.com

http://twitter.com/sharonnelsonesq