The California Supreme Court has expanded law enforcement authority at the expense of privacy and personal liberty by allowing police to confiscate and search cell phones of people they arrest without first obtaining a search warrant.


In a 5-2 decision Jan. 3, the court held that cell phones are "entitled" to inspection by law enforcement upon an arrest because the devices are considered "immediately associated with [the arrestee's] person." The majority opinion in the case, People v. Diaz, ruled that "lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have in property immediately associated with his or her person at the time of arrest."


Essentially, the ruling treats a cell phone akin to clothing worn by an arrestee; a bad idea with troubling consequences.


In 2007 Gregory Diaz was arrested for attempting to sell ecstasy pills to an informant. As a result of the arrest, police offers searched his cell phone and found text messages that were eventually used as evidence against Mr. Diaz for selling drugs, specifically ecstasy. As a defense, Mr. Diaz argued that text messages obtained through the seizure of his cell phone was a violation of his Fourth Amendment protection against unreasonable search and seizure. The California Supreme Court, however, ruled that the Fourth Amendment did not protect cell phone content in such instances.


In the dissenting opinion, Justices Carlos Moreno and Kathryn Werdegar strongly disagreed. Justice Werdegar warned that the ruling gives "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 or handheld computer merely because the device was taken from the arrestee's person."


Marcia Hoffman, senior staff attorney for the Electronic Frontier Foundation, an advocacy group devoted to protecting electronic freedom, called the decision "an unfortunate result" and said it sets a "dangerous and far reaching precedent that does not take into account the modern realities of how we live today." The decision is based on physical world realities but does not translate to the digital world. She acknowledged the need to "pat someone down to make sure there is no weapon that would pose a danger to the officer" but she said "cell phones do not pose a threat."


The Ohio Supreme Court in a similar case ruled the opposite of the California court, which means the U.S. Supreme Court may choose to take up the issue.