EFF is proud to support SB 914, a bill that requires the police to obtain a warrant before searching a recent arrestee’s cell phone.
SB 914 is a response to a January decision of the California Supreme Court in People v. Diaz. In that case, the court authorized police officers to search any person’s cell phone after they had been arrested under a narrow exception to the Fourth Amendment’s warrant requirement that permits law enforcement officers to search the area immediately around a person “incident to arrest.” This exception has two traditional rationales: ensuring officer safety by allowing a search for weapons, and protecting evidence from immediate destruction. By permitting the warrantless search of a cell phone under this exception, the Court gave officers carte blanche to rummage through all the private data and information people keep on their cell phones – emails, text messages, call history, websites they’ve visited, and their calendars, to name just a few examples –regardless of whether the police believed there was evidence of the crime on the cell phone and without any judicial oversight.
Courts throughout the country have been grappling with this issue and have reached conflicting results, with some courts authorizing warrantless searches of cell phones and others not. In an amicus brief (pdf) recently filed before the Oregon Supreme Court, EFF argued that warrantless searches of cell phones incident to arrest violate the Constitution’s right to privacy. This is all the more troubling because cell phones pose no danger to the police, the threat of destruction of evidence can be easily remedied through simple preservation methods, and many arrests do not result in criminal prosecution at all. Read More
