Last week in a ruling sure to be hotly debated in law school criminal procedure classes around the country, the California Supreme Court ruled that arresting officers, without a warrant, may search the contents of a cell phone taken from a suspect during arrest stating, “lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have in property immediately associated with his or her person at the time of arrest,” and that, “…this loss of privacy allows police not only to seize anything of importance they find on the arrestee’s body … but also to open and examine what they find.” (People v. Diaz, No. S166600, January 3, 2010, avail at: http://www.courtinfo.ca.gov/opinions/documents/S166600.PDF)
The court’s 5-2 decision in Diaz extends to all content held on a mobile or smart phone and specifically renounces the idea that the amount or type of data makes a cell phone somehow different than any other object found on or near an arrestee’s person.
What does this mean for law enforcement (and arrestees) in California? It means, for better or worse, cops have unprecedented access to the astounding amounts and types of information that can be stored on today’s smart phones. Or as the dissenting justices put it, law enforcement may now “rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee’s person.”
…Call history, contacts, text messages, photos, voice mail, voice recordings, video files, calendar entries, tasks, notes, address book, Web browsing history, chat logs, data stored in applications (including social media applications), search history and even data from location-enabled services or applications – which can help police reconstruct an arrestee’s past whereabouts – are all fair game. The evidentiary possibilities are endless.
Incidentally, in a move that now seems particularly well-calculated, AccessData recently released Mobile Phone Examiner Plus (MPE+) 4.1 – a product that is tailor made to let arresting officers take full advantage of the Diaz decision. With the MPE+ Field Tablet users can instantly search and collect all of the data mentioned above from a cellular phone while in the field. The software unlocks locked phones and supports over 2500 devices, including 80% of CDMA phones such as Blackberrys, iPads and iPhone 4. The end-result of an MPE+ investigation is a forensically sound, clean copy of the data and a quick-print/PDF view that gives officers an immediate look at extracted data.
However you feel about the 4th Amendment, one thing is for sure; this ruling has utterly changed the playing field in California at least until the U.S. Supreme Court weighs in – which it seems likely to do considering that the Ohio supreme court has ruled the opposite way on this issue. And Justice Ming Chin seems to invite the Supreme Court to do just that with a rather obvious passing of the hot potato, concluding, “[if] the wisdom of the high court’s decisions “must be newly evaluated” in light of modern technology (dis. opn. of Werdegar, J., post, at p. 1), then that reevaluation must be undertaken by the high court itself.”
I, for one, interestedly await the highest court in the land’s deep dive into the nature and type of data that can be stored on handheld devices and how privacy and our 4th Amendment rights interplay with it.