California lawmakers debate warrants and cell phone searches

 Posted on August 26,2011 in Criminal Defense

In January the California Supreme Court ruled that a police search of a cell phone after an arrest is constitutionally sound. This blog carried a story on the ruling on January 21. The January ruling involved an appeal of a case where Ventura County law enforcement searched a man's cell phone for text messages after the man was arrested on suspicion of committing a California drug crime.

The January ruling may not be the end of the story. Monday the California Assembly unanimously approved a measure aimed at requiring law enforcement to seek a valid warrant before they can lawfully search the contents of a cell phone. However, the Assembly measure differs from a bill that passed in the Senate last month. The Assembly measure waters down the warrant requirement by allowing law enforcement to conduct a warrantless search if they believe an exception applies.

The exceptions that would allow police to conduct a warrantless search under the Assembly bill would involve situations where police believe the search is necessary to prevent injuries, to stop the destruction of evidence or to prevent a crime from occurring.

The exceptions are similar to generally accepted exceptions under constitutional analysis. Criminal defense attorneys regularly scrutinize the circumstances when an officer claims an exception applies and can challenge the evidence where law enforcement may have violated a suspect's rights.

Proponents of the measure say it will help to protect individual rights in light of the January high court decision. Assemblyman Steve Knight, a former police officer who supports the measure, says the proposal would allow California law to catch up with today's technology. He says smart phones can store "limitless personal data." He says a cell phone search in today's world is ""more akin to searching one's bedroom or desk at the office."

Because the Assembly modified the measure, it must now return to the upper house before it can potentially reach the Governor's desk.

Source: San Francisco Chronicle, "Calif. Assembly passes cell-phone privacy bill," Marisa Lagos, Aug. 23, 2011