• The Right to Privacy in Your Cell Phone Data When You're Arrested
  • February 18, 2011
  • Law Firm: Law Office of Alanna D. Coopersmith - Oakland Office
  • California Supreme Court Judges rang in the New Year with a very controversial decision. On January 3, 2011, the court decided People v. Diaz, which holds that the police may automatically look through the cell phone or smart phone you have on you just because they've arrested you. Never mind that they don't have a warrant. Never mind that they don't have probable cause to believe that evidence will be found on your cell phone.

    Under the Fourth Amendment of the Constitution, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    It is true enough that if the police have the right to arrest you, they also have certain other privileges. They can search your person as incident to arrest. They can search the area within your immediate reach to ensure that evidence isn’t being destroyed and weapons aren’t being stashed.

    But in this signal onslaught on privacy rights, the California Supreme Court has taken the search incident to arrest doctrine and stretched it beyond all logical bounds. If the police officer has probable cause to arrest you, he can now look through your contacts and read your texts and email.

    Apologists for the Supreme Court’s opinion may argue that if the police have probable cause to arrest you they probably have good reason to think that evidence of your offense will be found on your cell phone. But that is by no means always true. What if you’re arrested for DUI/DWI, reckless driving, or driving on a suspended license? What about disturbing the peace, trespassing, battery, vandalism? Or how about you are stopped for a traffic ticket, get off on a bad note with the officer, and find yourself charged with resisting arrest. These are the kinds of things for which ordinary people are arrested.

    The dissenting opinion by Judge Werdegar warns that the majority court opinion will subject "anyone who is the subject of a custodial arrest, even for a traffic violation, to a preapproved foray into a virtual warehouse of their most intimate communications and photographs without probable cause.” The day may soon come when the U.S. Supreme Court is asked to weigh in on whether the police can indeed rummage at leisure through the cell phone of anyone who they arrest.

    In the meantime, if you want to keep the content of your cell phone private and free as possible of the prying eyes of the police, here’s some advice. Keep your cell phone near you, rather than on you. The California Supreme Court thinks it makes a difference if the item is found on your person or within your reaching distance. You’re better off keeping your cell phone or smart phone in your handbag, briefcase, or even next to you in your car, than you are in your clothes. And maybe it’s time for a password. I’ve never been a big fan of password protecting my cell phone, but Diaz may persuade me otherwise.


    For more information about criminal law and constitutional rights, contact Attorney Alanna D. Coopersmith at (510)628-0596. Visit us at http://www.criminaldefense-oakland.com