Police can search phones, says Calif. court

Like clothes or cigarette packs, cell phones and smartphones can be used as evidence in arrest

Thirty years ago, a police officer searching through an arrestee’s pockets and purses wouldn’t usually find much personal information beyond different forms of identification, credit cards, and maybe the arrestee’s favorite brand of cigarettes. These days, however, an officer need only find one thing--a cell phone--to discover all sorts of information about the arrestee.

Cell phones, just like clothes and packs of cigarettes, can be searched by police officers when making arrests, the California Supreme Court has ruled. While the Fourth Amendment protects against unreasonable searches, the Court says that once you’ve been arrested you must surrender your privacy rights.

The Supreme Court made its decision in a 5-2 vote, with Justices Kathryn M. Werdegar and Carlos R. Moreno dissenting.

The majority, led by Associate Justice Ming W. Chin, based its decision on precedents set by a few cases from over thirty years ago, where police officers used cigarette packages and clothing taken from arrests as evidence against defendants.

The dissenting opinion, written by Werdegar and with which Moreno concurred, argued that the amount of personal information stored in mobile devices, especially smartphones, is too great and sensitive to be open to police searching without a warrant:

The potential intrusion on informational privacy involved in a police search of a person's mobile phone, smartphone or handheld computer is unique among searches of an arrestee's person and effects. A contemporary smartphone can hold hundreds or thousands of messages, photographs, videos, maps, contacts, financial records, memoranda and other documents, as well as records of the user‟s telephone calls and Web browsing. Never before has it been possible to carry so much personal or business information in one‟s pocket or purse. The potential impairment to privacy if arrestees’ mobile phones and handheld computers are treated like clothing or cigarette packages, fully searchable without probable cause or a warrant, is correspondingly great.

What’s most interesting about the decision is that the ruling majority bases its arguments on precedents set by older cases, whereas the dissenting minority argues largely from a standpoint that recognizes the increasing potential of privacy breaches with the rising ubiquity of smartphones.

This is unlikely to be the end of this discussion, as the Ohio Supreme Court ruled in December 2009 that police violate defendants' privacy rights when searching their cell phones. Could a U.S. Supreme Court review be on the horizon?