The text messages in a defendant’s cell phone are in no way different, for the purposes of a police search after an arrest, from the defendant’s clothing or a cigarette package.
That was the holding of the California Supreme Court on January 3, 2011, in People v. Diaz, a case in which the state’s highest court approved the police’s warrantless search of the text message folder in defendant Gregory Diaz’s phone. The state court followed U.S. Supreme Court precedent, which permits searches “incident to a lawful arrest” but hasn’t yet dealt with cell phones, and rejected Diaz’s interesting argument that the nature of the phone – the fact that it can contain so much personal information – should lead to a different result.
Diaz had argued that although the phone itself could be seized by the police without a warrant, if the police wanted to read its contents in the form of the messages inside it, they needed to go to a judge and get a warrant based on probable cause.
The case represents a notable collision in an influential state court between the traditional rules of Fourth Amendment jurisprudence and the changing nature of modern technology. U.S. Supreme Court precedent deals with articles of clothing, cigarette packages, and foot lockers taken from defendants who are arrested. Today’s smartphones, as the dissenting judge in Diaz pointed out, 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.” Should they be treated just like a pack of cigarettes or a scrap of paper in a coat pocket?
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