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.

In 1969 the Supreme Court rejected a search incident to arrest where the area searched exceeded the area adjacent to the area where the defendant was arrested in Chimel v. California. The Court explained that the purpose of the search incident to arrest exception to the warrant rule was to protect law enforcement agents and to prevent the destruction of evidence. Therefore, the court ruled that a search incident to an arrest was only legitimate if the area searched was limited to that area adjacent to the area where the arrest occurred. Thus the only area that could be searched was the area in which the defendant had access to for either the purpose of getting a weapon or destroying evidence.

In 1981 the Supreme Court applied Chimel to auto searches in Belton v. New York. In Belton the Court attempted to develop a bright line rule for interpreting Chimel cases by ruling that the area under the control of the arrestee was the entire interior of the vehicle. But for the last twenty-eight years courts have disagreed about what searches were permissible under Belton. Most courts have ruled that the police could search the interior of the vehicle at any time. This allowed police to search the vehicle when the arrestee no longer had access to the vehicle. Searches incident to arrest have been upheld after the arrestee was handcuffed and placed in the police car. Courts have even upheld searches incident to arrest when the arrestee had been taken away and place in the jail.

Tuesday the Supreme Court in Arizona v. Gant said enough is enough. 1n 1979 we said that searches incident to arrest can only be justified if they protect the security of the police officer or prevent the destruction of evidence. Gant only allows searches of an automobile pursuant to a legal arrest if at the time of the search the arrestee is within the area where he/she might seize a weapon from the vehicle or where the police have have reason to believe that they will find evidence related to the crime for which the arrestee was arrested in the vehicle.

Hopefully this time the lower courts will pay attention.