BILL ANALYSIS Ó
SB 914
Page 1
Date of Hearing: June 21, 2011
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 914 (Leno) - As Amended: May 16, 2011
SUMMARY : Restricts the authority of law enforcement to search
portable electronic devices without obtaining a search warrant.
Specifically, this bill :
1)Provides that 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 search warrant.
2)Defines a "portable electronic device" as "any portable device
that is capable of creating, receiving, accessing, or storing
electronic data or communications."
3)Finds and declares the following:
a) The right of privacy is fundamental in a free and
civilized society.
b) 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.
c) 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
arrestee's portable electronic device.
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d) It is the intent of the Legislature to reject as a
matter of California statutory law to reject the rule
announced by the California Supreme Court in People v. Diaz
(2011) 51 Cal.4th 84, which held that the information in
portable electronic devices may be subject to search
incident to an arrest without a warrant or other judicial
supervision.
EXISTING FEDERAL LAW 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." (4th Amendment
of the U.S. Constitution.)
EXISTING STATE LAW :
1)Provides that "the right of the people to be secure in their
persons, houses, papers and 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.)
2)Prohibits exclusion of relevant evidence in a criminal
proceeding on the ground that the evidence was obtained
unlawfully, unless the relevant evidence must be excluded
because it was obtained in violation of the federal
Constitution's Fourth Amendment. ÝArticle I, Section 28(f)(2)
of the California Constitution (Right to Truth-in-Evidence
provision).]
3)Defines a "search warrant" as a written order in the name of
the people, signed by a magistrate and directed to a peace
officer, commanding him or her to search for a person or
person, a thing or things, or personal property. (Penal Code
Section 1523.)
4)Provides the specific grounds upon which a search warrant may
be issued, including 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
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particular person has committed a felony. (Penal Code Section
1524.)
5)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. (Penal Code Section 1525.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author," If you like to
attend political rallies, parades, protests or sit-ins, you
might want consider leaving your cell phone at home in the
event arrests are made. A recent California Supreme Court
decision allows police to rummage through all of the private
information on your smart phone as part of an arrest,
including your text messages and e-mails. This warrantless
search is now legal in California, regardless of whether the
information on the phone is relevant to the arrest or if
criminal charges are ever filed.
"The recent CA Supreme Court case, People v. Diaz, raises many
privacy concerns. In the split decision, a majority of
Justices ruled that police have unrestricted authority to
search the data stored on an arrestee's mobile phone without a
warrant, just as they may search clothing or small physical
containers found on the arrestee's person such as a crumpled
cigarette package. The Court failed to recognize the larger
application of the decision on everyday society given that
nearly every Californian has a cell phone and a corresponding
expectation of privacy of the information stored there.
"With rapidly advancing technology, cell phones have become
more than just a device used to make a phone call. They store
a wealth of personal information, including private
correspondence from spouses and loved ones, photographs,
banking records, proprietary information from businesses,
medical data, passwords, web browsing history, and even GPS
systems to track a person's whereabouts. Smart phones are
essentially our personal mobile computers. The simple fact
that technology allows us to store all this information in our
portable phones instead of our homes doesn't give government
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the right to view them at will. Such an intrusive search is a
clear violation to an individual's reasonable expectation of
privacy.
"SB 914 is a bill that would protect Californians from the
warrantless search of the private information contained in
portable electronic devices, including cell phones. The bill
clarifies that an arrestee's cell phone can only be accessed
with a warrant, except in circumstances where there is an
immediate threat to public safety or the arresting officer.
It acknowledges that accessing information on a cell phone is
fundamentally different than searching an arrested person's
wallet, cigarette pack or jeans pockets.
"Until the California Supreme Court decision earlier this
year, state and local police correctly assumed that the
state's constitutional privacy protections prohibited
warrantless searches of cell phones during an arrest. In
addition, the Ohio Supreme Court has ruled that cell phone
searches require a warrant, and federal law enforcement
agencies also abide by the warrant protocol. SB 914 simply
restores these critical privacy safeguards for Californians.
"In most cases, searching a cell phone immediately during an
arrest is an extraordinary measure. Once an arrest is made and
the arrestee's belongings are confiscated, a warrant for a
cell phone search can be obtained if it is important to a
criminal case. SB 914 will help ensure that a simple arrest -
which may or may not lead to charges - is not used as a
fishing expedition to obtain a person's confidential
information.
"By requiring law enforcement to obtain a search warrant prior
to viewing the information on an arrestee's portable
electronic device, SB 914 places a reasonable limit on the
search to mitigate an unrestricted invasion of privacy. SB
914 concurs with the dissent in People v. Diaz which found
that the majority went too far in 'apparently allowing police
carte blanche, with no showing of exigency, to rummage at
leisure through the wealth of personal and business
information that can be carried on a mobile phone merely
because the device was taken from an arrestee's person.'
"While there is no harm to law enforcement in obtaining a
warrant once a portable electronic device is within their
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possession, a warrantless search presents great harm in the
level of intrusion of personal privacy. SB 914 protects
Californians from a highly intrusive and unjustified type of
search that neither meets the warrantless standard, nor the
reasonableness standard."
2)Search and Seizure Generally : The Fourth Amendment of the
U.S. Constitution protects people against unreasonable
searches and seizures. Warrantless searches "are per se
unreasonable under the Fourth Amendment--subject only to a few
specifically established and well-delineated exceptions."
ÝMincey v. Arizona (1978) 437 U.S. 385, 390.] One of the
specifically established exceptions to the Fourth Amendment's
warrant requirement is "a search incident to a lawful arrest."
ÝUnited States v. Robinson (1973) 414 U.S. 218, 224.] The
traditional justification for the exception is the need to
search for weapons to protect officer safety, and the need to
prevent the destruction of evidence. ÝUnited States v.
Edwards (1974) 415 U.S. 800, 802-803.]
Thus, a lawful arrest in which the defendant is taken into
custody gives police the right to search the defendant's
person and items on his or her person. ÝU.S v. Robinson,
supra, 414 U.S. 218, 225-236 (upholding search of cigarette
package that the defendant had on his person).] Further,
right to search also extends to items in the arrestee's
immediate control. ÝChimel v. California (1969) 395 U.S.
752.]
A search incident to arrest is usually conducted at the scene of
the arrest, but it may also be made at the police station.
ÝU.S. v. Edwards, supra, 415 U.S. 800, 803.] However, if the
search is too remote in time and the property has been removed
from the arrestee's possession and is in the control of the
police, then a warrantless search can be unreasonable. ÝU.S.
v. Chadwick (1977) 433 U.S. 1, 15.]
3)People v. Diaz (2010) 51 Cal.4th 84 : In People v. Diaz, the
California Supreme Court granted review to decide whether it
was lawful for police to search an arrestee's cell phone based
on the "search incident to arrest" exception to the search
warrant requirement, which is usually justified by officer
safety or to avoid the concealment or destruction of evidence.
About 90 minutes after the defendant's arrest for participating
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in a controlled drug sale, police searched the text-message
folder on his cell phone which had been confiscated after the
arrest. When confronted with a text message that implicated
him in the sale, the defendant admitted participation. (Id.
at pp. 88-89.)
The trial court denied defendant's motion to suppress the
warrantless search of the phone, finding it was lawful since
the property had been seized and searched incident to a lawful
arrest. (Diaz, supra, 51 Cal.4th at p. 89.) The defendant
agued the search should not have been upheld based on this
exception because it was too remote in time and because police
had exclusive control over the phone at the time. (Id. at p.
91.)
The California Supreme Court reviewed pertinent U.S. Supreme
Court authority, including U.S. v. Robinson, supra, 414 U.S.
218, U.S. v. Edwards, supra, 415 U.S. 800, and U.S. v.
Chadwick, supra, 433 U.S 1, and distilled the rule that items
immediately associated with the person arrested can be
searched without a warrant even if the search is delayed,
while items not associated with the person, but rather just in
his or her immediate control at the time of the arrest, will
require a warrant when too much time has elapsed. (Diaz,
supra, 51 Cal.4th at pp. 91-93.) The court held the cell
phone was immediately associated with appellant's person
because it was on his person at the time of arrest, and so the
search was lawful. (Id. at p. 93.) The majority rejected the
notion that the nature of the character of the item seized
should determine whether a warrant is required to search it.
(Id. at p. 94.)
The concurring opinion rested primarily on the fact that because
of Proposition 8 (the Right to Truth in Evidence provision),
in California criminal proceedings all issues related to the
suppression of evidence derived from police searches and
seizures are now determined by application of federal
constitutional law. (Diaz, supra, 51 Cal.4th at p. 102.) The
concurring justice opined that the recent emergence of new
technology did not change that. (Id. at p. 103.)
The dissent would have held the search was unlawful. 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
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of data would be unlawful. (People v. Diaz, supra, 51 Cal.
4th at pp. 104-105.) The dissent noted that change in
technology impacts the application of precedent:
"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 ? 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, supra, 51
Cal.4th at p. 104, fn. 1.)
4)Other Jurisdictions : The Ohio State Supreme Court held "the
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, at pp. 170-171.) The court
used the same line of reasoning as the dissent in Diaz and
found 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:
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"ÝC]ell phones are neither address books nor laptop 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, supra, 124 Ohio St.3d at p. 169.)
Numerous other federal and state cases have confronted the
issue with differing results. The U.S. Supreme Court has
never ruled on police searches of cell phones; it is unclear
how the issue would be decided. A petition for certiorari is
pending in the Diaz case (No. 10-1231), and the Court has
directed the Attorney General to file a response to the
petition by June 23, 2011.
(. )
In June 2010, the U.S. Supreme Court did rule that a police
department did not violate an officer's privacy when it read
text messages he had sent on a department-owned pager. ÝSee
City of Ontario v. Kwon (2010) __ U.S. __, 130 S. Ct. 2619,
177 L. Ed. 2d 216.] However, there is a fundamental
difference between the reasonable privacy expectations of
government employees for communications on devices provided to
them by the state, and an individual's reasonable privacy
expectations for their personal communications on privately
owned devices.
5)Effect of New Technology : The rapidly growing digital
forensics industry already offers a range of tools to law
enforcement designed for pulling data off of mobile phones.
For example, in 2009, Dell unveiled a digital forensics
package for police and announced that the new forensics
service has a goal of helping police convict criminals in the
face of growing digital evidence. (See
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USTRE5660RN20090707>.) And AccessData recently released
Mobile Phone Examiner Plus (MPE+) 4.1, a product available in
the form of software or a field tablet, with which arresting
officers can instantly search and collect all of the data
mentioned above from a cellular phone while in the field. The
software unlocks locked phones and supports over 2,500
devices, including 80% of CDMA phones such as Blackberrys,
iPads and iPhone 4. The end-result of an MPE+ investigation is
a forensically sound, clean copy of the data and a
quick-print/PDF view that gives officers an immediate look at
extracted data. (See
.)
At the same time, with the rise of the "smart phone," cell
phones are moving more towards the role of a laptop or tablet.
And with the emergence of "cloud computing," which
essentially functions as a network, an individual can have
access to all his or her applications and data from any
network device, including a smart phone. (See e.g.,
.) The
kind of information that can be gathered from a smart phone in
this setting is endless and includes call history, text
messages, photos, voice mail, video files, calendar entries,
address book, Web browsing history, chat logs, data stored in
applications (including social media applications), and even
data from location-enabled services or applications.
6)Argument in Support : According to the Electronic Frontier
Foundation , "With rapid advancement in technology, cell phones
are now more than just devices used to call another person.
Instead, they store a treasure trove of personal information
far beyond a person's call history, such as messages,
photographs, financial records and web browsing history. In
fact, as widely reported, many "smartphones" can keep track of
an individual's location at all times. This means that every
person you have communicated with, every place you have been,
every message you have received and every transaction you have
done on your phone (and online if your phone accesses the
internet) is viewable by any officer who arrests you,
regardless of whether those actions are relevant in any way to
the arrest.
"Unfortunately, the California Supreme Court's decision in
People v. Diaz failed to recognize this serious privacy risk.
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It also failed to recognize that the rationale authorizing the
police to search an arrested person's pockets incident to
arrest - officer safety and destruction of evidence - do not
apply to the contents of a cell phone. There is no officer
safety concern because, apart from the fact the data on a
phone poses no danger to the police the way an individual
hiding a weapon in his pocket does, the phone is in the
exclusive custody of the police. Nor are there destruction of
evidence concerns because any minor possibility the cell
phone's contents could be remotely wiped while in police
custody can be remedied by a number of preservation methods,
including placing the cell phone in a container that isolates
the device from outside signals, removing the device's SIM
card, or most importantly, promptly obtaining a search
warrant. These means can ensure the integrity of any potential
evidence on the phone, which the police may then lawfully
search once they have obtained a warrant supported by probable
cause."
7)Arguments in Opposition : According to the Peace Officers
Research Association of California , "This legislation aims to
overturn a case decision regarding the search of a person and
property in custody, subsequent to an arrest. The California
Supreme Court had 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."
REGISTERED SUPPORT / OPPOSITION :
Support
California Newspaper Publishers Association (Sponsor)
First Amendment Coalition (Sponsor)
American Civil Liberties Union
California Attorneys for Criminal Justice
Californians Aware
California Broadcasters Association
California Public Defenders Association
Electronic Frontier Foundation
Legal Services for Prisoners with Children
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Opposition
California District Attorneys Association
California Peace Officers' Association
California Police Chiefs Association
California State Sheriff's Association
Los Angeles County District Attorney's Office
Peace Officers Research Association of California
San Bernardino County Safety Employees Benefit Association
San Bernardino Sheriff's Office
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744