BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 914 (Leno)
As Amended March 24, 2011
Hearing date: April 26, 2011
Penal Code
MK:dl
SEARCH WARRANTS:
PORTABLE ELECTRONIC DEVICES
HISTORY
Source: California Newspaper Publishers Association
American Civil Liberties Union
First Amendment Coalition
Prior Legislation: None
Support: Californians Aware
Opposition:Peace Officers Research Association of California;
Los Angeles County District Attorney's Office
KEY ISSUE
SHOULD THE LAW PROVIDE THAT A WARRANT IS NECESSARY TO SEARCH THE
CONTENTS OF A PORTABLE ELECTRONIC DEVICE THAT IS FOUND DURING A
SEARCH INCIDENT TO ARREST?
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PURPOSE
The purpose of this bill is to require a search warrant to
search the contents of a portable electronic device that is
found during a search incident to an arrest.
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." (4th 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 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 � 1523.)
Existing law provides that a search warrant may be issued upon
any of the following grounds:
a) When the property was stolen or embezzled.
b) When the property or things were used as the means of
committing a felony.
c) When the property or things are in the possession of
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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.
d) 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.
e) 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.
f) When there is a warrant to arrest a person.
g) When a provider of electronic communication
service or 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.
(Penal Code � 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. (Penal Code � 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
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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:
The right of privacy is fundamental in a free
and civilized society.
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.
The California Supreme Court, in People v.
Diaz, held that the information in these devices may
be subject to search incident to an arrest without a
warrant or other judicial supervision.
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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
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According to the author:
The Fourth Amendment of the United States Constitution
protects against unreasonable searches and seizures, and
generally requires a search warrant in order for the police to
conduct a search. There are some exceptions to the warrant
requirement, one of which is "a search incident to arrest."
One of the key components to this exception is the
reasonableness of searching for weapons or other evidence of a
crime when a person is taken into official custody and
lawfully detained. This kind of warrantless search is
justified because an arrested defendant may be a danger to the
arresting officer and use a weapon, or conceal or destroy
evidence.
The search incident to arrest exception has taken on new
significance given a very recent, controversial, split
decision, by the CA Supreme Court where - without guidance on
the issue from the US Supreme Court and straying from the
holding of another state supreme court faced with similar
facts (State v. Smith, 124 Ohio St.3d 163, 2009) - a majority
of Justices ruled in People v. Diaz 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.
This case is indicative of a growing divide among courts in
their application of the search incident to arrest exception
such that, faced with the same facts, a handful of courts
would invalidate a warrantless search of a cellular phone
incident to arrest, while many more would uphold it. Indeed,
the Ohio Supreme Court raised the issue of a warrantless
search under similar facts, and that court held that the
search was invalid. In the opinion, the court relied heavily
on a higher expectation of privacy given that cell phones have
"the ability to transmit large amounts of data in various
forms, likening them to laptop computers, which are entitled
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to a higher expectation of privacy."
In yet another case in our very own state, the United States
District Court for the Northern District of California in
United States v. Park granted a defendants motion to suppress
the warrantless search of his cell phone. The district court
reasoned that modern cell phones have the capacity for storing
immense amounts of private information and thus likened the
devices to laptop computers, in which arrestees have
significant privacy interests. Because the search of the cell
phone's content was not conducted out of concern for the
officer's safety or to preserve evidence, the court found that
it did not fall under the search incident to arrest exception
and that the officers should have obtained a warrant to
conduct the search. It is clear then, cellular phones, "smart"
phones, and other portable informational storage devices
continue to change our technological landscape, and
unfortunately, a lack of legal precedent in this area makes
legal conclusions tenuous.
The Court does the best it can with the case law that
preceded. However, advances in technology, and telephonic
communication in particular, continually force the courts to
grapple with the appropriate application of search and seizure
law to address constitutional privacy concerns. It is no
wonder that it is often difficult to find consensus when the
Justices must look to a document signed into law in 1787 to
answer the modern questions of the day about devices that were
never conceived at the time. Indeed, in the Diaz case, the
prior case law relied upon by the court, referred to as
Edwards and Robinson, didn't deal with cell phones and the
objects weren't similar. SB 914 takes the position that
portable electronic devices are not sufficiently analogous to
clothing or cigarettes - the objects referred to in the
court's ruling - and therefore does not warrant a blanket
exception to the warrant requirement.
When the court relied on the law as it had been applied in
these two cases, they failed to recognize the larger
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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.
Allowing uninhibited searches of the very data stored within a
portable electronic device - personal pictures, confidential
emails, text messages, calendars, and contact lists - presents
very real privacy concerns that have not been properly
resolved by the Court. Clothing, cigarette packages, and other
closed containers hold a lower expectation of privacy than
portable electronic devices because of both the quality and
quantity of information stored there. There is a clear
difference between a search of a tangible object and a
tangible container, as compared to a tangible object with an
intangible content that is used by the general public to
retain very private information. Further, courts have
regularly dismissed the suggestion that a person does not have
a reasonable expectation in the information stored on a
cellular phone. Thus, absent an applicable exception, law
enforcement must obtain a search warrant to search a cellular
phone.
If we look to the Chimel v. California from 1969 where the
dual justifications for search incident to arrest began, prior
to Robinson and Edwards, the court was very clear that once
evidence is reduced to government control, and there is no
longer a risk of destruction evidence, law enforcement must
obtain a warrant. Once police have the evidence under
government authority, there is no immediate reason why they
cannot obtain a warrant before searching the contents of the
device. There is no legitimate government interest that
justifies a delayed warrantless search once the arrestee and
his or her effects are safely under police control.
Instead, 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
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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
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 4th Amendment of the US Constitution and Article I, Section
13 of the California Constitution protects people against
unreasonable searches and seizures. Generally, the lawfulness
of a search of the items in the arrestee's immediate control is
based upon the need to protect the officer and to discover
evidence in the case. This has been found to include search of
items when a person is booked into jail on the theories that the
time lag is inconsequential; it is less of an invasion than a
public search at the place of arrest; is necessary for inventory
purposes; and, it can prevent contraband being brought into the
jail. However, if the search is remote in time and the property
has been removed from the defendant's possession and is in the
control of the police, then a warrantless search has been found
not to be reasonable. Numerous cases have looked at this issue
of when a search incident to arrest is valid. (See for example:
U.S v. Robinson (1973) 414 U.S. 218; U.S. V. Edwards (1974) 415
U.S. 800; U.S. v. Chadwick (1977) 433 U.S. 1; N.Y. v. Belton
(1981) 453 U.S. 454; People v. Hamilton (1988) 46 C. 3d 123) )
After Proposition 8 (June 1982), in California, the scope of a
search incident to arrest is based on federal law thus
California courts will look to the federal courts for precedent
when deciding a case.
3. Diaz case
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In People v. Diaz (2011) 51 Cal. 4th 84, the California 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.
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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:
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
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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
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)
4. Requiring a Warrant for Cell Phone Searches
This bill provides that information contained in a portable
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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.
The warrant can be issued using the procedures that currently
exist in law.
Existing case law also sets forth exigent circumstances when a
search can occur without a warrant when one would otherwise be
required. Since this bill does not create a new procedure for
warrants and merely states that one is required to search a cell
phone incident to arrest, all existing case law regarding
exigent circumstances would apply.
5. 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 ACLU 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
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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.
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In addition the California Newspaper Publishers Association
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.
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.
6. Opposition
PORAC opposes this bill stating:
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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.
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