CALIFORNIA GOVERNOR JERRY BROWN VETOES LIMITATION ON CELL PHONE SEARCHES

Last January the California Supreme Court found in People v. Diaz that the search of a cell phone on the person of an arrestee was legal under the Fourth Amendment exception to the warrant requirement for searches made pursuant to a lawful arrest even if the search did not occur until 90 minutes after the arrest. The California Legislature passed SB 914 making cell phone searches illegal without a search warrant. But Governor Jerry Brown vetoed the legislation yesterday.

Brown, the former state attorney general, sided with law enforcement officers who argued that cell phones contain information about crimes that can be deleted before a search warrant can be obtained.

But as an attempt to override Diaz the legislation would probably have failed anyway. It does not take into consideration the concurring opinion of Justice Kennard in Diaz. She pointed out that Article One, Section 24 of the California Constitution limits the exclusionary rule to the exclusion of items which are seized in violation of the Fourth Amendment. Thus the California statute vetoed by Governor Brown could not have required the exclusion of text messages on a cell phone in light of the state Supreme Court’s finding in Diaz that the seizure of the cell phone did not violate the Fourth Amendment.