The California Supreme Court in People v. Diaz upheld the delayed search of a cell phone seized at the time of an individual’s arrest. The Court found that the search of text messages and other information found on a phone can be searched pursuant to the search incident to a lawful arrest exception to the Fourth Amendment’s search warrant clause.

Citing United States Supreme Court precedent, the state supreme court distinguished between property that is immediately associated with the arrestee’s person which can be searched in a delayed search and other property seized in an search pursuant to a legal arrest which must be searched immediately. Finding that a cell phone is immediately associated with a person’s body the court upheld the search. ¹

But Justice Werdegar, in dissent, points out that we must review and reinterpret old Supreme Court cases in light of modern technology. After all the cases cited by the majority all preceded the invention of cell phones and other hand held computers. These devices, unlike the defendant’s clothing, preserve tremendous amounts of personal data and are extremely private. While individuals being arrested may expect their clothing to be searched after it is seized as part of their arrest, few expected text messages from their spouse or confidential messages from clients or business partners to be searched.

Furthermore, as the Supreme Court stated in Gant the purpose of the arrest pursuant to a legal arrest exception to the Fourth Amendment’s warrant clause is to protect officers from possible dangerous or lethal weapons and to prevent the destruction of evidence. Information on a cell phone or a PDA can neither injure an officer of be destroyed once the defendant is in custody. ² To sacrifice the basic reasons for the Fourth Amendment, our privacy from unreasonable governmental searches in exchange for government snooping that will neither protect law enforcement officers or prevent the destruction of evidence is unnecessary and unreasonable. It is not too much to ask that officers get a search warrant before searching modern cell phones once the phone is in police custody.