BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 914| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 445-6614 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 CONTINUED SB 914 Page 2 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 ÝPEN] 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 CONTINUED SB 914 Page 3 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. CONTINUED SB 914 Page 4 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 CONTINUED SB 914 Page 5 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: "ÝW]hether defendant's cell phone was 'personal property ? immediately associated with Ýhis] 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 Ýand] place from the arrest,"' 'cannot be justified as incident to that arrest' unless an 'exigency existÝed].'" (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: CONTINUED SB 914 Page 6 "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 Ý104 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 'Ýg]eneral expressions transposed to other facts are often misleading.' ( Armour & Co. v. Wantock (1944) 323 U.S. 126, 133 Ý89 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. ___, ___ Ý173 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: "ÝC]ell phones are neither address books nor laptop CONTINUED SB 914 Page 7 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: "ÝT]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 CONTINUED SB 914 Page 8 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. CONTINUED SB 914 Page 9 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 **** END **** CONTINUED SB 914 Page 10 CONTINUED