Last month’s California Supreme Court decision in People v. Diaz represents an unprecedented expansion of the government’s ability to search without a warrant. The defendant, Diaz, was arrested for possession of narcotics after an informant bought six pills of ecstasy from him. Ninety minutes after Diaz had been cuffed, the arresting officer confiscated and searched Diaz’s cell phone, finding a text that was allegedly related to the drug sale.
The court upheld the officer’s actions under the exception to the warrant requirement that allows “search incident to arrest.” The rationale for the exception focuses on the protection of officers and the preservation of evidence. The court’s logic is problematic because it fails to show how a cell phone search falls into either of those categories.
Searching a cell phone, unlike searching an area immediately surrounding the arrestee, is not necessary to locate weapons, which could be used against the officers or other persons who are in the vicinity. Likewise, a cell phone search is not necessary for the preservation of evidence, since any texts or phone call logs can simply be retrieved by subpoena from the phone company. The deletion of a text message is far more complicated then flushing a joint down the commode or other forms of evidence destruction. In fact, since Diaz had the cell phone in his pocket at the time of his arrest, it is likely that the phone would have been booked as jail property, where the officer could have retrieved it after securing a warrant to search its contents. Finally, because the search occurred ninety minutes after the arrest, it’s hard to see how it was an “incident” to the arrest in the first place.
Do police now have the right to search through your myspace and facebook apps for incriminating evidence if you’re arrested? How about checking your Internet history to see what you’ve been looking at or perusing your pics? It appears that the impact from this decision on individual liberties could be immense.