December 3, 2020

Planning on Committing a Crime in California? Leave Your iPhone at Home…

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:

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.

Caitlin Murphy

Caitlin Murphy is Director of Marketing for the Access Data Group, where she manages all aspects of legal marketing and consults on product design for the AD Summation line. She is a product and industry expert as well as an attorney and member of the California State Bar. Before joining AccessData, Caitlin spent five years working for CT Summation as a product evangelist in both San Francisco and London. Caitlin raised Summation’s brand profile by making numerous presentations to all levels of American and European legal professionals and by conducting over 50 thought leadership seminars in 30 states. Prior to entering the e-Discovery field, Caitlin practiced civil litigation with the San Francisco bay area law firms Kazan, McClain, Lyons, Greenwood & Harley and Lieff, Cabraser, Heimann & Bernstein. She received her J.D. from the University of California Hastings College of the Law and holds a B.A. in United States History from the University of California at Davis.

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  1. Ryan says:

    I think it is a major invasion of privacy, and it’s an invitation for cops to over step their bounds and abuse their power. There is already lots of complaints and I heard a couple lawsuits here in Michigan against the State Police because they are going through peoples phones when no one is being arrested. They are going through peoples phones when they are pulled over for a simple traffic violation.

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