Tuesday, March 1, 2011


Recently, the California Supreme Court expanded the authority of the police to search items taken from a person at the time of arrest.
In the case of People v. Diaz , California Supreme Court , Case #S166600, it was held that the police do not need a warrant to search a cell phone carried by someone who has lawfully been arrested.
Mr. Diaz was arrested on suspicion of selling drugs. The police then searched the text message folder on his cell phone. When confronted with a text message that implicated him in the sale of drugs, he admitted participation.
He then filed a motion to suppress the evidence seized from his cell phone, arguing that it was an unlawful search. The trial court denied his motion to suppress the warrantless search of the phone, finding it was lawful since the property had been seized and searched incident to a lawful arrest.
The California Supreme Court granted review to decide if the search fell within the "search incident to arrest" exception which is usually justified by a search for weapons for officer safety or to avoid the concealment or destruction of evidence. Mr. Diaz argued that the search should not have been upheld based on this exception because it was too remote in time and police had exclusive control over the phone at the time.
The court reviewed U.S. Supreme Court authority, including U.S. v. Robinson (1973) 414 U.S. 218, U.S. v. Edwards (1974) 415 U.S. 800, and U.S. v. Chadwick (1977) 433 U.S. 1. The court held that items immediately associated with the person arrested can be searched without a warrant even if the search is delayed, but items not associated with the person, but rather just in his or her immediate control at the time of the arrest, will require a warrant when too much time has elapsed. The majority held the cell phone was immediately associated with defendant's person because it was on his person at the time of arrest, and so the search was lawful. The majority rejected the notion that the nature of the character of the item seized should determine whether a warrant is required to search it.
(Editorial Note: As a word of advice, if you don’t want anyone to access your phone in the event you are arrested, you should use a lock feature with a password.)

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