Gov. Brown Vetoes Cell Phone Protections

Whenever the police can obtain information without getting a warrant, they’ll do it. It’s just easier. Cellular phones in particular provide a treasure trove of information to police, who can stand by and search cell phones for incriminating evidence while their suspect languishes in the back seat of the police car. The police have broad latitude to search anything they find on a suspect incident to arrest. It makes sense: suspects might have dangerous objects on them, or they might have evidence that they’ll try to destroy.

But how long after an arrest can the police search a cell phone? Earlier this year, California grappled with People v. Diaz, 51 Cal.4th 84 (2011) and concluded that even ninety minutes after an arrest, when the phone is safely stored far away from the suspect and the danger of destruction is effectively zero, the police could search the contents of a cell phone without a warrant. Diaz was arrested for selling drugs, and text messages found in his phone (ninety minutes later) confirmed that he was selling drugs.

Diaz reflected how the law, statutory or otherwise, failed to reflect the state of technology.

To support its opinion, the California Supreme Court cited U.S. Supreme Court precedent involving clothes, a pack of cigarettes, and a footlocker. The California Supreme Court did not care about the character of a cell phone or its storage capacity; indeed, the court explicitly rejected the fact that a cell phone can store lots of data — in a way that a pack of cigarettes or a footlocker cannot — in coming to its conclusion.

Enter the legislature. Both the California General Assembly and the California Senate approved S.B. 914, which would have overturned Diaz and imposed a warrant requirement on police seeking to search the contents of a cell phone incident to an arrest. The bill could not be easily attacked; Sen. Mark Leno, the bill’s sponsor, added an exception that permitted the police to search a cell phone pursuant to “established exceptions to the warrant requirement.” This could include the need to search a cell phone in case a suspect tried to destroy information on the phone.

But Gov. Brown, in his last-minute sign-or-veto session on Sunday, vetoed S.B. 914. In vetoing the bill, he decided that “[t]he courts are better suited to resolve the complex and case-specific issues relating to constitutional search-and-seizures protections.” But, as Sen. Leno pointed out, the courts have already decided on the issue, the legislature disagreed with the ruling, and used its authority to overrule the court.

Criminal procedure watchers are not pleased. Professor Orin Kerr of George Washington University School of Law said that “Governor Brown has it exactly backwards.” It’s true: the California legislature acted precisely how a legislature should act in response to disagreeable case law. Gov. Brown’s half-hearted justification for his veto misunderstood, unintentionally or not, the legislature’s intent in passing the law. I guess we’ll have to resort to the tried-and-true voter initiative to deal with this problem.