BILL ANALYSIS Ó
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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 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
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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:
"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:
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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 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
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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:
"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
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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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