Jerry Blows The Call

Let’s say you and I are sitting at lunch and you get up to use the restroom. Uninvited, I grab your cell phone and start paging through your text messages and your directory and whatever else might be there. Are you legitimately upset with me for doing this? Have I done something wrong?

Yes, and yes — I have invaded your privacy.

Now let’s say we aren’t at lunch and instead I’m a cop who has just arrested you for speeding, or for slinging rock, or something else. Without bothering to get a search warrant first. How am I invading your privacy any less by reading your cell phone under those circumstances than I did when I read your phone at lunch?

In California, at least, that’s a lawful search. Here’s the story: on April 25, 2007, Gregory Diaz was arrested in Ventura for abetting the sale of Ecstacy (he was the driver, not the seller). During the pat-down incident to Diaz’ arrest, police found some marijuana and a cell phone. During interrogation, Diaz denied knowledge of the drug deal. A cop then searched through the text messages on the phone (no warrant) and found a message reading “6 4 80,” interpreting this as “6 tabs of Ecstacy for $80,” and he confronted Diaz with the evidence. Diaz then confessed. He entered a not guilty plea and moved to exclude evidence of the confession and the cell phone search; when the trial court denied that motion he changed his plea to guilty and appealed.

The California Supreme Court held that this was a righteous search. The cop going through text messages on the phone was incident to taking an inventory of the defendant’s possessions during the arrest. It seemed particularly interested in the fact that the search of the phone took place about half an hour after the arrest. In response, the California Legislature passed SB 914, which would have changed the law to require a warrant before searching a cell phone.

Further diminishing my chances of judicial nomination should my true identity be discovered and this blog scoured for evidence of my political opinions, I note critically today that the Governor has vetoed SB 914. SB 914 would have overturned, by legislation, the holding in People v. Diaz that reading an arrestee’s cell phone is “incient to an arrest” and therefore does not require a warrant. The Governor stated that he thought the courts were better-suited to handling these kinds of issues than the legislature and he preferred to see case-by-case determinations of when and under what circumstances cell phones could be searched by cops without warrants.

This veto tells cops, “Read the phones first, worry about legality later, and the sooner you read the phones, the better.” Evidence of unrelated crimes, or evidence of embarassing but otherwise legal events in the arrestee’s life (a drinking habit, pornography, extramarital affairs), or even evidence of innocuous things like the people I call the most often or how much money I have in the bank, is now fair game to use as leverage against an arrestee to pressure a confession. Since we have to wait for a judicial determination, case-by-case, of when a cell phone search is unreasonable, a search is presumptively reasonable right now — meaning that future cases deciding on the reasonability of a search will begin from the premise that the police have read People v. Diaz and thus have been instructed by the courts that they are allowed to search phones. As a practical matter, all warrantless cell phone searches are legal now.

I suppose the only thing citizens can do to protect their privacy is to password-protect their phones and refuse to give up the passwords when asked. Which makes an arrest that much more confrontational, that much more adversarial, that much more likely to lead to serious consequences. But what else can you do?

Diaz was going to be convicted anyway. The Court did not need to bend over backwards to ensure that his conviction stood or that future cases like this could go so easy for the cops. Notice how Diaz rolled over like a daschund begging for treats as soon as he saw the six-charcter text. Demanding a warrant in this case would not have reduced the effectiveness of the evidence once the cops had got it with a warrant.

When presented with a choice as to modification of the law, the presumption should be that the law should be modified in a manner that increases, rather than diminishes, individual liberty. This veto moves the law in the opposite direction. The decision of the Court did little to fight crime and this veto moves the state further away from the appropriate balance between individual civil liberties and effective policing against crime. That’s why I say Jerry Brown made the wrong call here.