BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                      



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          |SENATE RULES COMMITTEE            |                   SB 914|
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                                 THIRD READING


          Bill No:  SB 914
          Author:   Leno (D)
          Amended:  5/16/11
          Vote:     21

           
           SENATE PUBLIC SAFETY COMMITTEE  :  6-1, 4/26/11
          AYES:  Hancock, Anderson, Calderon, Liu, Price, Steinberg
          NOES:  Harman


           SUBJECT  :    Search warrants:  portable electronic devices

           SOURCE  :     American Civil Liberties Union 
                      California Newspaper Publishers Association
                      First Amendment Coalition


           DIGEST  :    This bill requires a search warrant to search 
          the contents of a portable electronic device that is found 
          during a search incident to an arrest.

           ANALYSIS  :    The US Constitution provides that "the right 
          of the people to be secure in their persons, houses, 
          papers, and effects, against unreasonable searches and 
          seizures, shall not be violated, and no Warrants shall 
          issue, but upon probable cause, supported by Oath or 
          affirmation, and particularly describing the place to be 
          searched an the persons or things to be seized." (Fourth 
          Amendment of the U.S. Constitution.)

          The California Constitution provides that "the right of the 
          people to be secure in their persons, houses, papers and 
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          effects against unreasonable seizures and searches may not 
          be violated; and a warrant may not issue except on probable 
          cause, supported by oath or affirmation, particularly 
          describing the place to be searched and the persons and 
          things to be seized." (Article I, Section 13 of the 
          California Constitution.)

          Existing law defines a "search warrant" as an order in 
          writing in the name of the People, signed by a magistrate, 
          directed to a peace officer, commanding him or her to 
          search for a person or persons, a thing or things, or 
          personal property, and in the case of a thing or things or 
          personal property, bring the same before the magistrate.  
          (Penal Code ›PEN] Section 1523)

          Existing law provides that a search warrant may be issued 
          upon any of the following grounds:

          1.   When the property was stolen or embezzled.

          2.   When the property or things were used as the means of 
             committing a felony.

          3.   When the property or things are in the possession of 
             any person with the intent to use them as a means of 
             committing a public offense, or in the possession of 
             another to whom he or she may have delivered them for 
             the purpose of concealing them or preventing them from 
             being discovered.

          4.   When the property or things to be seized consist of 
             any item or constitute any evidence that tends to show a 
             felony has been committed, or tends to show that a 
             particular person has committed a felony.

          5.   When the property or things to be seized consist of 
             evidence that tends to show that sexual exploitation of 
             a child, or possession of matter depicting sexual 
             conduct of a person under the age of 18 years, has 
             occurred or is occurring.

          6.   When there is a warrant to arrest a person.

          7.   When a provider of electronic communication service or 

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             remote computing service has records or evidence, 
             showing that property was stolen or embezzled 
             constituting a misdemeanor, or that property or things 
             are in the possession of any person with the intent to 
             use them as a means of committing a misdemeanor public 
             offense, or in the possession of another to whom he or 
             she may have delivered them for the purpose of 
             concealing them or preventing their discovery.  (PEN 
             Section 1524(a))
           
          Exiting law provides that a search warrant cannot be issued 
          but upon probable cause, supported by affidavit, naming or 
          describing the person to be searched or searched for, and 
          particularly describing the property, thing or things and 
          the place to be searched. (PEN Section 1525)

          This bill provides that the information contained in a 
          portable electronic device shall not be subject to search 
          by a law enforcement officer incident to a lawful custodial 
          arrest except pursuant to a warrant issued by a duly 
          authorized magistrate.

          This bill provides that "portable electronic device" means 
          any portable device that is capable of creating, receiving, 
          accessing, or storing electronic data or communications.

          This bill makes the following legislative findings and 
          declarations:

          1. The right of privacy is fundamental in a free and 
             civilized society.

          2. The number of Californians utilizing and carrying 
             portable electronic devices is growing at a rapidly 
             increasing rate.  These devices are capable of and 
             encourage the storing of an almost limitless amount of 
             personal and private information.  Commonly linked to 
             the Internet, these devices are used to access personal 
             and business information and databases that reside in 
             computers and servers located anywhere in the world.  
             Users of portable electronic devices have a reasonable 
             and justifiable expectation of privacy in the 
             information these devices contain and can access through 
             the internet.

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          3. The California Supreme Court, in  People v. Diaz  , 51 Cal. 
             4th 84 (2011), held that the information in these 
             devices may be subject to search incident to an arrest 
             without a warrant or other judicial supervision.

          4. The intrusion on the information privacy and freedom of 
             communication of any person arrested is of such enormity 
             that it must require arresting officers to obtain a 
             warrant to search information contained in or accessed 
             through an arrested's portable electronic device, such 
             as a cellular telephone.

          5. It is the intent of the Legislature in enacting Section 
             1542.5 of the Penal Code to reject as a matter of 
             California statutory law the rule under the Fourth 
             Amendment to the United States Constitution announced by 
             the California Supreme Court in  People v. Diaz  .  The 
             Legislature finds that once in the exclusive control of 
             the police, cellular telephones do not ordinarily pose a 
             threat to officer safety.  The Legislature declares that 
             concerns about destruction of evidence on a cellular 
             telephone can ordinarily be addressed through simple 
             evidence preservation methods and prompt application to 
             a magistrate for a search warrant and, therefore, do not 
             justify a blanket exception to the warrant requirement.  
             Moreover, good forensic evidence practice supports the 
             use of search warrants to obtain information contained 
             in a cellular telephone seized incident to arrest.  
             Except as otherwise stated in this section, it is not 
             the intent of the Legislature to curtail law enforcement 
             reliance on standard exceptions to the warrant 
             requirement.  

          6. It is the intent of the Legislature, through the 
             enactment of Section 1542.5 of the Penal Code, to 
             implement the provisions of Sections 1 and 13 of Article 
             1 of the California Constitution.

           Background
           
           Diaz  case:  

           In  People v. Diaz  (2011) 51 Cal. 4th 84, the California 

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          Supreme Court found that it was lawful for law enforcement 
          to conduct a search of an arrestee's cell phone 90 minutes 
          after his arrest while the phone was in the possession of 
          law enforcement.  Defendant Diaz was witnessed 
          participating in a sale of Ecstasy.  A cell phone was found 
          on his person.  The cell phone was put in evidence and the 
          defendant interviewed.  After the interview the detective 
          looked at the messages on the cell phone one of which was 
          about the drug sale. When confronted with this evidence the 
          defendant confessed.  

          In evaluating the case law and how it applied to the  Diaz  
          case, the majority of the Court found that the "key 
          question" was:

            "›W]hether defendant's cell phone was 'personal property 
            ? immediately associated with ›his] person' (  Chadwick  , 
            supra, 433 U.S. at p. 15) like the cigarette package in 
             Robinson  and the clothes in  Edwards  .  If it was, then the 
            delayed warrantless search was a valid search incident to 
            defendant's lawful custodial arrest.  If it was not, then 
            the search, because it was ' "remote in time ›and] place 
            from the arrest,"' 'cannot be justified as incident to 
            that arrest' unless an 'exigency exist›ed].'"   
            (Citations omitted)  (  People v. Diaz  (2011) 51 Cal. 4th 
            84, 93)"

          The Court found that the phone was immediately associated 
          with the defendant's person and thus law enforcement was 
          entitled to inspect its contents without a warrant.  The 
          Court did not agree with the arguments of the defendant or 
          the dissent that a cell phone and the capacity for what it 
          can hold should be treated differently than other 
          "containers" and thus the precedents don't directly apply 
          to the situation.

          The concurrence opinion in  Diaz  rested primarily on the 
          fact that because of Proposition 8 California must follow 
          the precedents directly and that the recent emergence of 
          technology did not change that.

          The dissent on the other hand believed that the search was 
          unlawful and that the change in technology impacts on how 
          precedents should be applied:

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            "The separately concurring justice correctly observes 
            that we must follow directly applicable decisions from 
            the United States Supreme Court even if we think them due 
            for reexamination. (  Rodriguez de Quijas v. Shearson/Am  . 
            Exp. (1989) 490 U.S. 477, 484 ›104 L. Ed. 2d 526, 109 S. 
            Ct. 1917].)  But where high court precedent is not on all 
            fours with the case at bar, we also must remember that 
            the language of Supreme Court decisions is to 'be read in 
            the light of the facts of the case under discussion' and 
            that '›g]eneral expressions transposed to other facts are 
            often misleading.'  (  Armour & Co. v. Wantock  (1944) 323 
            U.S. 126, 133 ›89 L. Ed. 118, 65 S. Ct. 165].)  Indeed, 
            the Supreme Court recently emphasized that stare decisis 
            should not be used 'to justify the continuance of an 
            unconstitutional police practice. ? in a case that is so 
            easily distinguished from the decisions that arguably 
            compel it.  (  Arizona v. Gant  (2009) 556 U.S. ___, ___ 
            ›173 L. Ed. 2d 485, 499, 129 S. Ct. 1710, 1722].)'

            "The facts of the present case, as I will explain, differ 
            in important respects from those that gave rise to the 
            United States Supreme Court decisions in Robinson, 
            Edwards and Chadwick.  These precedents, therefore, 
            provide no basis for evading this court's independent 
            responsibility to determine the constitutionality of the 
            search at issue. While we of course have no authority to 
            overrule them, we may and should refrain from applying 
            their language blindly to new and fundamentally different 
            factual circumstances. (  People v. Diaz  , (2011) 51 Cal. 
            4th 84, 104 )"

          The dissent focused on the amount of information a modern 
          cell phone can carry in determining that a warrantless 
          search of the phone once it is secured and without fear of 
          imminent loss of data would be unlawful.

          An Ohio State Supreme Court decision took the same line of 
          reasoning as the dissent in  Diaz  finding that the issue of 
          a warrantless search of a cell phone is a novel one and 
          thus there was no precedent that was factually on point.  
          That court focused on the fact that:

            "›C]ell phones are neither address books nor laptop 

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            computers.  They are more intricate and multifunctional 
            than traditional address books, yet they are still, in 
            essence, phones, and thus they are distinguishable from 
            laptop computers.  Although cell phones cannot be equated 
            with laptop computers, their ability to store large 
            amounts of private data gives their users a reasonable 
            and justifiable expectation of a higher level of privacy 
            in the information they contain.  Once the cell phone is 
            in police custody, the state has satisfied its immediate 
            interest in collecting and preserving evidence and can 
            take preventive steps to ensure that the data found on 
            the phone are neither lost nor erased.  But because a 
            person has a high expectation of privacy in a cell 
            phone's contents, police must then obtain a warrant 
            before intruding into the phone's contents. (  State v. 
            Smith , (2009) 124 Ohio St. 3d 163, 169)"

          Specifically, the Ohio Court held: 

            "›T]he warrantless search of data within a cell phone 
            seized incident to a lawful arrest is prohibited by the 
            Fourth Amendment when the search is unnecessary for the 
            safety of law-enforcement officers and there are no 
            exigent circumstances.   (State v. Smith (2009) 124 Ohio 
            St. 3d 163, 170-171)"

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes   
          Local:  Yes

           SUPPORT  :   (Verified  5/18/11)

          California Newspaper Publishers Association (co-source)
          American Civil Liberties Union (co-source)
          First Amendment Coalition (co-source)
          California Attorneys for Criminal Justice
          Californians Aware
          Electronic Frontier Foundation

           OPPOSITION  :    (Verified  5/18/11)

          Los Angeles County District Attorney's Office
          Peace Officers Research Association of California
          San Bernardino County Sheriff's Office


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           ARGUMENTS IN SUPPORT  :    Supporters of this bill believe 
          that the dissent in  Diaz  and the Ohio Supreme Court in 
           Smith  are correct in stating that modern cell phones are 
          very different than the cigarette packs or even purses and 
          brief cases that were addressed in search incident to 
          arrest cases in the past.

          In support of this bill the American Civil Liberties Union 
          states:

            "Modern smart phones are owned by millions of persons.  
            These devices not only keep records of call logs, text 
            messages and voicemails, but also store videos, photo 
            albums, e-mail, records of webpages visited, and provide 
            access to social networking sites and personal calendars. 
             Searching a cell phone, therefore, can reveal everyone a 
            person knows and with whom he/she communicates and what 
            he/she discusses.  This may include unveiling political 
            views, financial information, romantic relationships, and 
            medical information such as doctor, therapist and 
            counselor appointments.  Searching the contents of a 
            portable electronic device phone, in effect, opens a 
            window into every aspect of our private life.  

            "The  Diaz  case eviscerates protections for personal and 
            private information that is ordinarily protected from 
            government snooping for anybody who is arrested for any 
            crime, including infractions, and allows law enforcement 
            to intrude into our personal lives without any judicial 
            oversight.  Law enforcement can now rummage through 
            everything in your smart phone without any reason to 
            think that any of your personal information might show 
            criminal behavior."

          In addition the California Newspaper Publishers Association 
          (CNPA) believes that the  Diaz  case raises additional 
          concerns for reporters who can carry sensitive information 
          on modern cell phones and similar devices and allowing 
          warrantless searches of such devices may impact protections 
          that reporters have regarding their sources.  Specifically 
          CNPA states:

            "The  Diaz  decision presents serious problems for 
            newspaper publishers, editors and working journalists.  

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            California has unique protections that allow publishers, 
            editors, and working journalists to do their job and 
            protect sensitive sources and their unpublished notes 
            from being routinely accessed by law enforcement and 
            litigants.  This information is protected from subpoena 
            under the California Shield Law (See, Cal. Const. Art. 
            Sec. 2 and Evidence Code Sec. 1040) and by the absolute 
            prohibition on the search of newsrooms contained in the 
            Penal Code (See, Sec. 1524 (g)).  These protections 
            against forced disclosure of sensitive information are 
            meaningless if all the contents of a journalist's cell 
            phone (i.e., contracts, note, photographs, connections to 
            newsroom servers, etc.) can be searched following a 
            custodial arrest.

            "The modern cell phone allows storage of an almost 
            limitless amount of personal information.  Commonly 
            linked to the Internet, these devices are used to access 
            personal and business information and databases that 
            reside in computers and servers located anywhere in the 
            world.  All Californians, and especially journalists, 
            have a reasonable expectation that, upon a custodial 
            arrest, the information these devices contain with not be 
            searched without a duly authorized warrant."

           ARGUMENTS IN OPPOSITION  :    Peace Officers Research 
          Association of California opposes this bill stating, "This 
          legislation aims to overturn a case decision regarding the 
          search of a person and property in custody, subsequent to 
          arrest.  The California Supreme Court has held the search 
          of information in an arrestee's cell phone and data in that 
          phone is discoverable.  Restricting the authority of a 
          peace officer to search an arrestee unduly restricts their 
          ability to apply the law, fight crime, discover evidence 
          valuable to an investigation and protect the citizens of 
          California."


          RJG:kc  5/18/11   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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