*1 Jan. S166600. 2011.] [No. PEOPLE, Plaintiff Respondent,
THE DIAZ, Defendant and Appellant.
GREGORY
Counsel Court, Defendant Woodward, Supreme under A. appointment Lyn and Appellant. Gillette, General, Chief Assistant Brown, Jr., Dane R. Attorney
Edmund G. General, Hamanaka, Donald E. General, Attorney Assistant Pamela C. Attorney Daniels, General, Paul M. M. DeNicola, Lawrence State Solicitor Deputy General, *5 Wilson, for Plaintiff Jr., Roadarmel, Attorneys Deputy and Victoria B. and Respondent.
Opinion Fourth whether the to decide review in this case
CHIN, J. granted We law enforcement States Constitution permits to the United Amendment and a officers, lawfully arresting suspect after minutes approximately the of a warrantless search to conduct a detention facility, him to transporting after the arrest. his take from they person of a cell folder message phone text binding Court’s that, precedent, the United States Supreme hold under We affirm arrest. We custodial to a lawful being a search is valid such judgment. Court of Appeal’s the Background
Factual Fazio of Victor Sheriff Senior Deputy on 2:50 April About p.m. Diaz Gregory defendant witnessed Sheriff’s County Department the Ventura in a informant’s controlled Defend- purchase Ecstasy. participating sale, ant the then drove the seller to location took Ecstasy’s backseat Immediately the of the car defendant was after the place driving. sale, Fazio, who had in on transaction through listened wireless transmitter the informant the car defendant was wearing, driving was stopped and arrested defendant in the being drugs. for sale of Six tabs coconspirator arrest, were seized in with and a amount Ecstasy connection small was found in defendant’s Defendant had a cell on marijuana pocket. phone his person. station,
Fazio defendant sheriff’s where a detective seized transported the cell from defendant’s and it to it Fazio. Fazio with phone gave put and, the other 4:18 evidence interviewed defendant. Defendant p.m., interview, denied having transaction. After the knowledge drug about 4:23 Fazio looked cell at the text and p.m., phone’s message folder discov- ered a message that said 80.”1 “6 Based his and training experience, Fazio $80.” mean interpreted message Within pills Ecstasy “[s]ix minutes of discovering message (and less than 30 minutes after the cell phone’s discovery), Fazio showed defendant. Defendant then message admitted sale of participating Ecstasy. (Health
Defendant was charged with a controlled substance & selling Saf. Code, (a)). subd. He pleaded not moved to guilty § suppress fruits of cell search—the text phone message and the statements he made when confronted with it—arguing the warrantless search of the cell violated the motion, Fourth Amendment. trial The court denied the “The explaining: defendant was under arrest for felony charge involving sale of His was seized drugs. from him. Evidence was seized property arrest[,] him. . . . to the search of his everything [f] [I]ncident that turned up fair in terms of a really game being evidence crime or instrumentality a crime or whatever theory be. And under might these circumstances I don’t believe there’s that a authority warrant was required.” Defendant then withdrew his guilty plea pleaded guilty transporta- tion of a controlled substance. trial court accepted plea, suspended *6 sentence, and imposition defendant for three probation years. placed affirmed, The Court of that under Appeal finding governing court precedent, because cell “was associated with immediately phone [defend- arrest,” at the time of his it was to a person “properly subjected delayed ant’s] warrantless search.” We granted defendant’s for review. petition 1 manipulate phone go Fazio had to and to several different screens access the text message He did up folder. not recall whether cell was on when he it picked look through it. 90
Discussion Amendment to be The that right people Fourth provides “[t]he effects, houses, and unreasonable against in their secure persons, papers, violated, issue, seizures, not and warrants shall but and shall be no searches affirmation, cause, or and oath supported by particularly upon probable searched, seized.” things to be and or be describing persons place it, has as the United States Court construed Supreme Under provision, searches—i.e., conducted outside the judicial warrantless “searches process, . . se . without or unreasonable by judge magistrate”—“are per prior approval and to a few established well-delineated subject only exceptions.” specifically (Katz 347, 576, (1967) L.Ed.2d 88 S.Ct. v. United States 357 [19 507], omitted.) fns. to the Fourth
One established specifically exceptions a is “a search incident to lawful arrest.” Amendment’s warrant requirement 218, L.Ed.2d S.Ct. (1973) Robinson 414 U.S. (United States v. [38 (Robinson).) justified This “has been exception traditionally 467] instruments of and evidence searching escape, reasonableness of weapons, when is official and detained. custody lawfully of crime a taken into person (United 802-803 States Edwards [Citation.]” As (Edwards).) L.Ed.2d S.Ct. has explained: 1234] [39 made, that the always danger a custodial arrest is there is some person “When or a that be concealed may arrested seek to use or evidence may weapon, others, To and to the loss prevent himself destroyed. safeguard evidence, for the officer to conduct arresting it been held reasonable has the area his arrestee’s “within warrantless ‘search prompt, conducted may . . . .’ Such searches immediate control” [Citations.] [f] warrant, there is also be made whether they may have or is cause to believe arrested weapon probable custodial dangers all lurking about to evidence. The destroy potential items the ‘immediate control’ make searches of within arrests warrantless officer to calculate the arresting prob reasonable without requiring area be involved. or destructible evidence may ability weapons [Citations.]” (1977) 433 U.S. 14-15 (United States v. Chadwick (Chadwick).)2 S.Ct. 2476] case of the cell that the search in this phone’s People argue to defendant’s lawful was valid as a search incident message text folder “ which [the control ‘the area within The area an arrestee’s immediate within gain destructible might weapon evidence.’ possession [Citations.]” arrestee] *7 14.) supra, p. 433 U.S. at time” that search “was remote in arguing arrest.3 Defendant the too disagrees, to a valid to In this argument, search incident his arrest.4 qualify making he that held custody “was in well emphasizes exclusively police before the text message search its folder.”
Resolution of this issue on the court’s depends principally Robinson, Edwards, Robinson, Chadwick. decisions in and In officer police (Robinson, arrested driving the defendant for with a revoked operator’s permit. 220.) 414 U.S. at The officer conducted and felt patdown an he could in the object identify not breast of the defendant’s coat. pocket He removed the turned to be a which out object, up cigarette crumpled He felt the and it objects determined contained that were package. package not He then cigarettes. found 14 heroin opened package capsules. (Id. 222-223.) The court held that the search of the pp. warrantless (Robinson, was valid Amendment. package under Fourth that, arrest, 224.) It incident to a lawful custodial explained have police (Id. to conduct “a authority 235.) full search of the person.” [arrestee’s] continued, This the court authority, exists whether or not the have police reason to believe the arrestee has on her his or either evidence or person “A of a weapons. custodial arrest based on cause is a suspect probable Amendment; reasonable intrusion under Fourth intrusion being lawful, a search arrest no to the additional person] [of requires It is the justification. fact of lawful establishes authority search, and ... the case a lawful arrest a custodial full search of the is not an only the warrant of the requirement Fourth exception Amendment, but is also a (Ibid.) under ‘reasonable’ search that Amendment.” these Applying held: “The search of principles, [the defendant’s] heroin, . . . and the seizure him from of the were under permissible established Fourth Amendment law .... the course of a lawful Having search come upon crumpled cigarettes, was package [the officer] it; entitled to and when his inspect revealed the heroin he inspection capsules, ‘fruits, instrumentalities, was entitled to seize them as or contraband’ proba (Id. tive omitted.) of criminal conduct. fns. [Citations.]” Edwards, In lawfully after the defendant late one arresting night office, break into a took him attempting him post police jail placed (Edwards, later, in a cell. Ten hours suspecting that his clothes might through contain window which he paint chips enter, had tried to made the defendant into new clothes and change do People defendant had protected expectation contest in the message purposes contents of his text For therefore opinion, folder. we assume expectation, defendant had such do not the issue. consider legality question Defendant does not his arrest or phone’s either his validity challenges only seizure. He phone’s message warrantless search of the text folder. *8 (Id. see also id. at 802; (dis. old at opn. held his ones as evidence. Stewart, the old revealed J.).) examination of clothes Subsequent paint (Id. at 802.) The high taken from the window. matching samples chips the the and the court held that both warrantless seizure of clothes warrantless a search incident to lawful arrest. search of them for were valid as paint chips (Id. that, the 802-809.) It the because rejected argument at pp. expressly arrest been search occurred “after the administrative mechanics of ha[d] incarcerated,” the of the clothes was and the search prisoner completed [was] (Id. 804.) to at The too remote in time to as a search incident arrest. qualify and is in lawfully custody, court the accused is arrested explained: “[0]nce at the of detention that were to subject the effects in his possession place lawfully at the time and of his arrest be searched and seized place may search a time has period elapsed even substantial though warrant hand, the on the one between arrest and administrative processing, subsequent evidence, true the the for use as on the other. This is and taking property the seized arrival at the jail, where effects are clothing immediately upon the at a jail, under name in the room’ of and held the defendant’s ‘property and criminal trial. The later time searched taken for use at the subsequent not taken from the result is the same where the is property physically (Id. 807-808, defendant until sometime after his incarceration.” pp. omitted, added.) italics fns. Chadwick, cut the
In the court back on Chadwick, Edwards rule had announced. In federal narcotics seemingly broad the load a double-locked footlocker observed defendants agents 200-pound, to the a car. cause believe footlocker Having into trunk of probable contraband, and trans arrested the defendants illegal agents contained with the car and footlocker. building, along them to a federal ported consent, There, a warrant or minutes after the arrest without obtaining inside. marijuana found agents footlocker opened 4-5.) that rejected argument court pp. It was incident to arrest. first reaffirmed principle search valid as search arrests,” that, custodial lurking in all dangers because of potential “[t]he “whether or not a warrantless search incident arrest may conduct have weapon there is cause believe arrested probable (Id. “However,” the court about evidence.” destroy or is pp. seized at or other “warrantless searches luggage property explained, if the to that either time of arrest cannot be justified arrest,’ [citation], or exigency time from the no ‘search is remote in or place reduced or other luggage Once law enforcement officers have exists. arrestee with the immediately associated their property control, might that the arrestee danger no longer any exclusive there is evidence, a search to seize destroy access to the gain property weapon (Id. italics the arrest.” longer no an incident of property held, added.) Under because “the was con- principle, had control gained ducted more than an hour after federal exclusive agents *9 the footlocker and after were in it long securely custody,” defendants] [the could “be viewed to the or as other justified by any not as incidental conclusion, (Ibid.) In not this the court did overrule reaching exigency.” Edwards, Robinson or but them as warrantless distinguished involving “of within searches the rather than searches “of person” possessions (Chadwick, 10.) arrestee’s immediate at former p. control.” searches, the court the “reduced “justified explained, by” expectations arrest”; Thus, (Ibid.) caused the the latter are the defendants’ by not. interest in the was contents footlocker not eliminated “privacy simply (Ibid.) they because were under arrest.” decisions, these key
Under the in this case is whether defendant’s question cell was . . . with phone immediately associated “personal property [his] (Chadwick, 15) 433 U.S. at supra, like the in person” cigarette package Robinson and the clothes in Edwards. If it was, then the warrantless delayed search a valid was search incident to defendant’s lawful arrest. If it custodial “ not, search, was then the it because was ‘remote in time place [and] ” arrest,’ the “cannot justified as incident to that unless an arrest” (Chadwick, 15.) supra, “exigency exist[ed].”5 We hold that cell the phone was associated with “immediately (Chadwick, person” 15), 433 U.S. at and that [defendant’s] search of the cell phone therefore was valid. As People the cell an item explain, phone “was personal property] [of [defendant’s] time of his arrest during the administrative at the processing station.” In it regard, was like the from the taken clothing Edwards defendant in cigarette taken from the defendant’s package Robinson, Chadwick, in coat it pocket and was unlike the footlocker in was from the defendants’ and was separate persons within “area” merely “ ” of their ‘immediate control.’ Because the cell was with phone associated defendant’s immediately person, (Robinson, Fazio “entitled was its without a contents warrant inspect” sheriff’s station 90 minutes after defendant’s arrest, whether or not an exigency existed.6 delay The approximately 90-minute between defendant’s arrest and the of his cell search
phone substantially delay was similar too 90-minute court held to be remote in Chadwick. conclusion, argument exigency Given our not People’s we need address the that an existed phone’s dynamic cell subject change because a contents “are in nature and warning—by the replacement incoming messages; by of old data with new calls or a mistaken button; push by by person contacting provider; of a the loss of a power; phone cellular or by person pre-selecting ‘cleanup’ phone, length function on the cellular which limits the otherwise, that, whether In defendant first asserts his deciding arguing in Robinson or the cigarette cell is “the of’ the equivalent package Chadwick, “character,” on the mere we focus on its not footlocker in should fact it on As defendant interprets he was his carrying person.
cases, item the seized is a warrant for a unless necessary delayed or clothing, or an article or container on or inside typically kept “clothing, For two its nature carried on arrestee’s very person.” otherwise First, reasons, meet cell do not these criteria. argues, they defendant worn, attached “are or carried or necessarily routinely[] pocket, near clothes,” owner[s], his but are “more often within kept [their] briefcase, or on a car seat or reach . . . inside backpack, purse, [their] *10 table, source, manner into a or stashed inside of any or plugged power Second, cell or carrying quanti containers.” separate bags phones “contain[] ties data conventional item of evidence tradi any of unrivaled personal by of the considered to associated with tionally ‘immediately person wallet, arrestee,’ box cigarette as an article a clothing, crumpled such found and therefore implicate heightened “privacy in an arrestee’s pocket,” in Chadwick.”7 ... concerns” that warrant them “like footlocker treating that all cell phones dissent endorses defendant’s latter point, asserting Robinson, Chadwick, Edwards, from the rule of should be exempt can store “dwarfs cell because the amount information (Dis. that can be carried on the in container.” spatial opn. person post, J., 109.) Werdegar, do the view that
The relevant court decisions not support they must a warrant before an item have get searching whether police arrestee’s incident a lawful custodial arrest seized properly from character, its for storing personal on the item’s depends including capacity Chadwick above, warrantless delayed information. As noted that a explains 16, 10)—which 433 U.S. fn. search “of person” time with at the associated “immediately includes property person” (id. 15), that is “within an arrestee’s but excludes only property (id. 10)—is of “reduced valid because immediate control” (ibid.). Robinson that states if a caused the arrest” expectations lawful, a “full” search the arrestee’s person custodial arrest is then (Robinson, 235.) 414 U.S. at p. no additional justification.” “requires however, note, that automatically messages they of time are stored before are deleted.” We they evidence evidence this claim. Nor have offered People support have offered no phone’s the cell may be from messages text deleted from a cell obtained whether Searches, Phones, Orso, and the New Frontier Fourth Cellular Warrantless (See provider. Jurisprudence (2010) messages feasibly are Amendment L.Rev. 50 Santa Clara 199 [“text provider”].) two weeks the cellular accessible for about delayed commonly that courts hold argument implicitly recognizes Defendant’s incident to arrest. persons valid searches of wallets found on arrestees’ warrantless searches (9th 943-944.) Passaro (See, e.g., U.S. 624 F.2d Cir. Edwards states that “once the accused is arrested and is in lawfully custody, the effects in his at the of detention that were possession place subject search at the time and of his arrest be searched and seized place may lawfully warrant even a substantial of time has though period elapsed hand, between the arrest and administrative on the one subsequent processing, evidence, and the (Edwards, taking use as on the other.” property in these even Nothing decisions hints that whether a warrant for a search of an item necessary seized from an properly arrestee’s to a lawful custodial arrest depends any way the character of the seized item.
Moreover,
contexts,
analogous
has
rejected
expressly
the view that the
of a
validity
warrantless search
on the character of
depends
In United States
the searched item.
v. Ross
(Ross),
102 S.Ct.
court held that
who have
2157]
cause to
probable
believe
lawfully
car contains
stopped
contraband may
conduct a
of any
or container in the car
compartment
here,
conceal
may
of the search.
object
As relevant
the court stated that
whether a
container
particular
be searched
without a warrant does
*11
container,
on the
depend
character of the
constitutional
explaining:
“[A]
distinction between
‘worthy’
‘unworthy’ containers would be improper.
Even
such a
though
distinction
could evolve in a
perhaps
series of cases in
trunks,
buckets,
locked
paper bags,
lunch
crates were
orange
other,
on one side
placed
of the line or the
the central
of the Fourth
purpose
Amendment
(Id.
822,
forecloses such a
distinction.”
at
omitted.)
fns.
“The
p.
of a
scope
warrantless search of an automobile thus is not defined
nature of the container
(Ross,
in which the
contraband is secreted.”8
at
824.) In New York
v. Belton
(1981)
768,
Regarding particular, argument reasons the of cell for several alleged storage capacity phones, First, the storage no evidence regarding the record contains unpersuasive. cell in particular. or of defendant’s general of cell phones capacity the sheer Second, why explains neither defendant the dissent persuasively nor determinative. Even “small spatial information should be of personal quantity J., less that hold post, (dis. Werdegar, opn. container[s]” intimate cell contain may highly personal, information than phones If, letters, information, or diaries.10 as such as photographs, private Ross, a few articles of a toothbrush and “a traveler who carries court held in his to conceal right knotted scarf equal in a bag clothing paper [has] executive with the official sophisticated inspection possessions (Ross, who 822), then travelers 456 U.S. locked attache case” to conceal right cell have no greater carry sophisticated information than travelers who such carry information from official inspection 1714], S.Ct. Gant In Arizona Belton, by holding not search limited after occupant’s arrest “incident to a recent passenger compartment containers in a vehicle’s vehicle,” unless “it is interior of the and cannot access the has been secured the arrestee *12 At might in the vehicle.” of arrest be found that evidence of the offense reasonable to believe may be time, container holding particular that whether court reaffirmed Belton’s the same privacy expectation of or the extent of arrestee’s depend on its character searched does not search, police permissible warrantless (Gant, p.at 1720] [in U.S. at 345 S.Ct. [129 in it. 556 briefcase, compart passenger the car’s container within” “every or other may purse, search here, area within an of the ment].) as it involved not otherwise relevant Gant is 1714].) control, (Id. p.at p.at 335 S.Ct. person. the arrestee’s immediate not of arrestee’s 10 upon found may personal photographs examine police question The dissent does not may police read high has not held objects that the person, but an arrestee’s J., (Dis. Werdegar, post, opn. of person. an arrestee’s diary seized from contents of a letter However, high court in Edwards 8.) appeals of decisions of the court fn. several p. at 803-804, {Edwards, pp. supra, 415 U.S. delayed searches on the issue of approval cited with arrest, examination, papers personal of diaries 4) the warrantless upheld 1970) (5th 426 F.2d (See Cir. person. U.S. upon found the arrestee’s Gonzalez-Perez (2d wallets, Frankenberry Cir. purse]; U.S. v. pockets, contained in [papers 1285-1287 1967) (9th [papers 371 F.2d 392 1967) [diary]; U.S. Cir. .337, Cotton v. 387 F.2d 339 contained in (1st [paper F.2d 213 v. U.S. Cir. pockets]; Grillo contained wallet].) J., (Dis. in “small post, Werdegar, spatial opn. container[s].”11 Belton, if, And as the court held in differing expectations privacy based on whether a container is or closed are irrelevant to the open validity (Belton, 461), a warrantless search incident then based on the amount of information a differing expectations privacy item contains should also be irrelevant. particular Regarding quantitative dissent, of defendant and the the salient analysis court’s point decisions is that a “lawful any custodial arrest justifies infringement interest arrestee have” in associated property immediately (ibid., time added), with his or her at the of arrest italics even if there (Robinson, is no reason to believe the contains or evidence property weapons Third, 235). U.S. at even were it true that the amount of information some cell can personal store “dwarfs that which can be phones J., carried on the (dis. in a container” post, spatial opn. Werdegar, 109)—and, the record again, contains no evidence on this question— defendant and the dissent fail to this circumstance would explain why justify all cell those with exempting phones, including limited storage capacity, Robinson, Edwards, the rule of and Chadwick12 (10) A warrantless search incident to a lawful arrest of a cell with limited storage capacity does not become unreasonable because other cell constitutionally simply may have a significantly greater storage capacity.
Finally, adopting of defendant and the dissent quantitative approach would create difficult line-drawing both courts and problems officers in the field. How would a court faced with a similar as to argument another of item determine whether type the item’s storage capacity constitutionally significant? And how would an officer in the field determine question Defendant and the upon arresting suspect? dissent offer no guidance on these Their would be questions. “inherently approach subjective fact highly would the sort of ad hoc specific, require precisely determinations on the of officers in the field and courts” that part reviewing (Thornton the high v. United States court has condemned. otherwise, containers, Were the carrying rule those spatial legally subject small which are arrest, seizure and search if found upon the person at the time of would find little solace in discovering that protected only they their intimate secrets would have been if had used a device that could hold more information. Justice, According to the United Department drug commonly States traffickers use *13 disposable phones, they (National cell relatively inexpensive because and difficult to trace. Center, Justice,
Drug Intelligence Department United States High Intensity Drug Midwest (Mar. Trafficking Drug Analysis 2009) Area <http://www.justice.gov/ Market 3, 2011].) ndic/pubs32/32775/distro.htm> of Jan. phones storage Such have limited [as (Ferro, phones: disposable phone finally Cell mobile hits the US capacity. (May Technology <http://tech.bIorge.eom/Structure:%20/2008/05/31/cell TECH.BLORGE News 3, 2011].) phones-disposable-mobile-phones-finally-hits-the-us/> of Jan. [as Belton, supra, 2127]; 124 S.Ct. see also 623 [158 court in Robinson to 458-459.) adopt Similar concerns led the high at pp. “ enforced” rule that ‘a “easily “straightforward,” applied, predictably ” is constitutionally full search of person’ permissible, [warrantless] in each case the issue litigated that ‘there must be suggestion to “reject[] not there was one of reasons supporting of whether or present arrest.’ for a search of the to lawful authority [Citation.]” Robinson, (Belton, 414 U.S. at quoting dissent, of defendant and the 235.) Adopting quantitative approach turn on the amount of of a warrantless search would validity under which contain, would be contrary information a item particular might U.S. v. Murphy 2009) 552 F.3d (See (4th Cir. these precedents. arrest, refusing distinguish warrantless search incident to upholding [in because of difficulty cell based on their “large” storage capacity that term “in any meaningful way”].) quantifying that, a warrant was neces- next whether argues determining
Defendant between the cell and its contents. phone we should sary, distinguish itself content that is defendant, little about a cell According phone’s “[t]here with the body linked to or associated inextricably physical conceptually inherent A cell data content is attributes of the arrestee’s person. phone’s inside a or even a folded paper up not at all like pair pants piece It “cannot be wallet that has been tucked inside the pocket pair pants.” a cell nature of the evidence that worn or ‘carried’ on one’s person.” “[T]he contain, is readily and the fact that the cell ‘container’ phone phone ‘content,’ the cell treating the cell warrants phone differentiated from phone cell itself.” The dissent makes from the seized differently phone content “the arrestee’s actual person” between argument, distinguishing similar content—i.e., that the loss of arguing the stored data—and the cell phone’s “bodily an arrestee’s a warrantless “search of person” justifies privacy” of a cell found upon does not also the search justify upon post, J., 110.) (Dis. of Werdegar, arrestee’s person. opn. court’s decisions. are inconsistent with
These arguments arrest extends beyond hold that the loss of privacy upon Those decisions associated with . . . immediately to include “personal property arrestee’s body U.S. at at the time of arrest. of the arrestee” hold, this loss of suggestion, to the dissent’s contrary also They find on they anything importance entitles to “seize” only police post, J., 110), but also (dis. Werdegar, body the arrestee’s opn. in Robinson held Thus, and examine what that a open find. the court they shirt officer, from the defendant’s a cigarette despite seizing package *14 control, a warrant need to obtain did not it to and reducing police pocket (Robinson, supra, contents. its examining before opening package in Edwards held that police, 236.) the court Similarly, at 414 U.S. p. control, them to reducing clothes and the defendant’s seizing despite to laboratory those clothes before subjecting to obtain a warrant did not need cases, 802-809.) high In both at (Edwards, pp. testing. from the seized item contents of distinguish refused court expressly (Dis. opn. “the arrestee’s actual person.” item itself or either the seized in Belton in refusing later 110.) explained at As the court Werdegar, post, p. and a of an item between the seizure distinction to draw a constitutional or seizure no search “[Ujnder fallacious theory item: this search of that valid; article seizing by custodial arrest would ever incident to a lawful to have reduced an officer be said the arrestee’s even on person, ” (Belton, supra, 453 U.S. at ‘exclusive control.’ article to his [or her] decisions, determin- 461-462, in Under these 5.) high pp. arrest, there is no basis legal of a search ing validity an item found an arrestee’s person the contents of upon distinguishing (Dis. opn. “the arrestee’s actual person.”13 either the seized item itself or J., 110.) post, at Werdegar, p. defendant’s, but addition to several arguments
The dissent makes Edwards, Robinson, are Although conceding also they unpersuasive. Chadwick, read,” “of warrantless searches delayed authorize “reasonably the dissent an arrestee’s associated with immediately person, containers” are not they from this rule because that cell are exempt asserts “ (Dis. decisions.” of the court’s search ‘containers’ within the meaning However, J., rule of 109.) post, application opn. Werdegar, Robinson, Edwards, and Chadwick turns not on whether the item question i.e., “container,” a “belongingG” but on whether it is “property,” constitutes a delayed search of an article insists that Edwards is “limited its facts to the Defendant However, belongings” broadly “other clothing.” discussion more addressed the court’s (id. 807). (Edwards, possession” arrestee’s] U.S. at and “effects in [the Robinson, discussion, light of disregard especially in free to We do not consider ourselves Chadwick, delayed validity of reaffirmed the clothing, which did not involve immediately with the . . . associated of-“personal property searches suggests that Edwards 15.) alternatively Defendant arrestee.” “ possession in the defendant’s only of ‘effects still delayed warrantless searches validates ” detention, opinion court’s clothing.’ Again, such as the defendant’s place limited; clothing or valid “where the delayed warrantless search is the court stated that not so in the the defendant’s name jail, arrival at the held under immediately upon seized effects subsequent at the time and taken for use jail, room’ of the and at a later searched ‘property (Edwards, supra, criminal trial.” *15 {Edwards, 803-804, 807-808; at supra, “effect[].”14 pp. Chadwick, 15; Robinson, see also 433 U.S. at supra, p. 414 U.S. at supra, 229, 232.) The pp. dissent’s to limit the reach of that rule attempt to “clothing J., and small (dis. containers” spatial of at opn. Werdegar, 109) finds post, p. no in the of the support language court’s high decisions. In governing this of those respect, language decisions is consistent with the entirely Fourth itself, Amendment of the protects right to be secure in people “[t]he houses, their persons, (Italics papers, added.) It is also consistent effects.” with one for the justifications search incident to arrest “the exception: reasonableness of for . . crime searching . evidence of when a is taken person into official custody lawfully (Edwards, detained. supra, [Citation.]” 802-803, 415 U.S. at added.) italics pp. to the Contrary dissent’s analysis, whether an item of personal constitutes a “container” property bears no relation to this justification.15
The dissent also errs in
that the
asserting
high court’s “rationale” for
allowing
warrantless
delayed
searches incident to arrest is of “doubtful”
applicability
“items that are
removed from the
easily
arrestee’s possession
and secured
(Dis.
J.,
police.”
at
opn. Werdegar,
post,
107.) In
p.
Edwards, the
court
high
declared it
that searches and
“plain
seizures that
be made
[may]
at the time of arrest
spot
be conducted
may legally
later when the accused arrives at the
(Edwards,
of detention.”
place
803.)
rule,
415 U.S. at
The rationale for
this
the court
is that the
explained,
arrestee is “no more
search
imposed upon” by
delayed
“than he [or she]
could have been”
aby warrantless search “at the time and
place
(Id.
805.)
difference,”
reasoned,
arrest . . . .”
There is “little
the court
between
the search
conducting
at the
place
arrest and
it later at
conducting
(Id.
803.)
detention.
place
This
is consistent
analysis
with the high
court’s earlier statement in Robinson that
officer’s determination
“[a]
as to how and where to search the
of a
whom he has arrested
suspect
is
ad hoc
necessarily
quick
judgment which the Fourth Amendment does
14The word
in Robinson and Edwards.
appear
“container” does not
It
appears once
Chadwick, high
a footnote where the
explained
that the
principal privacy
defendant’s
interest
in the footlocker
“not
was
in the container
. . . but
itself
in its contents.”
13-14,
8.)
pp.
433 U.S. at
fn.
court did discuss containers
in the
involving
decisions we have cited as
(Ante,
“analogous
analysis
contexts.”
In
respect,
weight
our
is
with the
consistent
(State
Boyd 1071, 1089,
authority.
not require added.) It (Robinson, italics first in the search.” in Chadwick that a statement court’s subsequent also consistent with associated with immediately personal property delayed the “reduced is justified by of an time of arrest arrestee *16 U.S. at supra, 433 of caused the arrest.” by expectations privacy assertion, of the the rationale these 10.) fn. dissent’s Contrary upon a of found decisions—that search an item of delayed personal property constitutionally more the arrestee’s person imposes an arrestee’s no upon than at the time and of place interest does a search privacy protected of defendant’s cell delayed to the search arrest—fully applies phone.16 that, above, United States the we hold under the For reasons discussed defendant’s cell Court’s the warrantless search of binding Supreme precedent, If, asserts, the high was as the dissent the wisdom of court’s valid. phone (dis. opn. “must be evaluated” in of modem newly light technology decisions 1., undertaken post, 104), at then that reevaluation must be Werdegar, of court the itself.17 high dissent, citing just the two of high explicit explanations, Not with the court’s the satisfied Edwards, (see string-cited appeals point of the
20 court
decisions Edwards
803-804,
4),
high
logistically
the
is to
pp.
asserts that
court’s “rationale
avoid
awkward
J.,
embarrassing
(Dis.
post,
107.)
public
opn. Werdegar,
of
This assertion
searches.”
decisions,
making
high
no
support
language
finds no
of
court’s
doubt because
delayed
logistics
validity
public
of a
turn on the
of a
search
potential
search
embarrassment
would,
of
approach, require
like the
“the sort
ad hoc determinations on
quantitative
dissent’s
high
officers
that the
has condemned.
part
reviewing
of
in the field
courts”
States,
(Thornton
U.S.
v. United
17Only
published
validity
a
exist
of
search of a
regarding
few
decisions
a warrantless
(See,
custodial
are in accord
our conclusion.
phone
cell
to a lawful
arrest. Most
with
Murphy,
holding
“once
e.g.,
[citing
[the
U.S. v.
552 F.3d at
Edwards in
evidence,
phone
investigators
cell
were entitled to
was held for
other officers
defendant’s]
warrant”];
Finley (5th
seeking
conduct a further
its contents ...
U.S.v.
Cir.
review of
250, 260,
category
F.3d
“does not fit
phone
All
fn. 7
cell
into
[arrestee’s
[Chadwick’s]
immediately
person
because it
on his
‘property
person’
associated with
was
[his]
arrest”];
(D.Mass. 2009)
delayed
F.Supp.2d
[upholding
time of his
v. Wurie
distinguishing
search
phone, finding
principled
of cell
“no
a warrantless
basis
types
from the
containers found on a defendant’s
phone
cell
search of other
Edwards].)
upheld
been
that” have
under
otherwise,
three)
closely
(four
opinion,
Supreme Court Ohio held
In a
divided
contents,”
reasoning
expectation
privacy
phone’s
has a
in a cell
“because
seizing
an
“must.
. .
a warrant before
phone
person,
after
a cell
from arrestee’s
obtain
police,
(State
N.E.2d
intruding
phone’s
Disposition The Court of is affirmed. judgment Appeal Kennard, J., Baxter, J., J., J.,* C. Corrigan, concurred. Acting George, KENNARD, J.,C. Acting that the holds Concurring. The majority warrant, may, without obtaining view or listen to information electronically stored on a mobile that a was when suspect carrying lawfully arrested. I dissent I disagrees. why join rather than the explain majority dissent.
On June
California
voters enacted
initiative measure known as
8.
other
Proposition Among
things, Proposition 8 added to
California
*17
Const.,
I, 28,
Constitution a “Right
(Cal.
Truth-in-Evidence”
art.
provision
§
former subd. (d)
(f)(2)]).
subd.
That provision generally prohibits
[now
exclusion of
evidence in
relevant
a criminal
ground
on the
proceeding
the evidence was obtained
Because the federal Constitution is
unlawfully.
Const.,
VI,
“the
(U.S.
of the land”
supreme
2),
law
art.
and thus prevails
§
over
state constitutional
conflicting
state Constitution’s
provisions,
“Right
to Truth-in-Evidence”
does not
when relevant evidence
provision
apply
must
be excluded
it was
because
obtained in violation of the federal Constitution’s
Amendment,
Fourth
“unreasonable
prohibits
searches and seizures.” As
result,
a
all
California criminal
issues related to the
proceedings
suppres-
sion of evidence derived from
and
searches
seizures
now deter-
police
mined
by
(2004)
federal constitutional law.
32
application
(People v. Lenart
1107,
592,
498];
Cal.4th
P.3d
(2003)
1118
88
v.
Cal.Rptr.3d
Sapp
People
[12
240,
554,
31
433];
Cal.4th
73 P.3d
267
v.
Cal.Rptr.3d
People
[2
Bradford
1229,
(1997)
145,
15 Cal.4th
259].)
1291
P.2d
On
issues
Cal.Rptr.2d
[65
law,
of federal constitutional
of the
decisions
United States Supreme
Communications,
(Gates
Court are controlling.
Discovery
(2004)
Inc.
Cal.4th
552].)
101 P.3d
Cal.Rptr.3d
[21
As the
three
of the
majority explains,
decisions
United States Supreme
Court
the result
this case. Those decisions are United States v.
compel
(1973)
(Robinson),
Robinson
Under
United
applicable
compulsion
judgment.
I
in
the Court of
affirming
Appeal’s
join majority
precedent,
con-
J.,
dissent. The
WERDEGAR,
majority
Dissenting.
I respectfully
on
arrestee’s mobile
search the data stored
an
cludes police may
warrant,
(see United
v.
clothing
as
search
States Edwards
they
771,
(Edwards)) or
small
(1974)
U.S. 800
L.Ed.2d
105 Never before has it and browsing.3 of user’s calls Web records telephone in one’s business information to so much or been possible carry mobile if arrestees’ to The potential impairment pocket purse. pack- like clothing cigarette are treated and handheld computers phones warrant, is correspondingly cause or fully probable searchable ages, great. defendant of phone not disclose the mobile type the record does
Although for two phones as well as other mobile I discuss smartphones possessed, First, device an electronic the mle adopted by majority—that reasons. indistinguishable on the is for Fourth Amendment purposes carried enough container—is broad or a small clothing spatial from individual’s devices, smart- including data all of handheld electronic encompass types devices, as other of types as well BlackBerry such as iPhones I on the holding While with disagree majority’s handheld computers. here, of a search incident of the search I validity agree permissibility of or technical specifications to arrest should the features depend device, at the time of arrest.4 which could be difficult to determine mobile Second, of the United States mobile make share up growing smartphones (See the near future. and are to be likely pervasive market Amendment, Gershowitz, 56 UCLA Meets the Fourth iPhone that such devices crystal L.Rev. does not take ball predict 29p. [“It be United a few The question will in the States within ubiquitous years.”].)5 when and how is therefore an one. may important of searched they incident to justified by important
Warrantless searches “When a custodial in officer of evidence. safety interests preservation made, seek arrest is there arrested always danger some 3 Incredible, up all 32 Apple’s BlackBerry Droid Torch can store iPhone ETC’s data, (See images digital or other files. gigabytes of which could include thousands of <http://www.htc.com/us/products/droid-incredibIe <http://www.apple.com/iphone/specs.htmI>; &sort=0#tech-specs>; and <http://us.blackberry.com/smartphones/ verizon?view= 1-1 3, 2011].) capabilities Jan. On the blackberrytorch/#!phone-specifications> [all Gershowitz, (2008) Meets the Fourth Amendment The iPhone smartphones generally, see UCLA L.Rev. 29-30. 56 4 Phones, Searches, Orso, and the New Frontier Fourth Cellular Warrantless But see distinguish Jurisprudence Amendment (proposing Clara Santa L.Rev. by presence of a touch screen or full smartphones generation phones” from “older cellular keyboard, impose smartphones). searches and to stricter limits on alone, example, smartphones than million were quarter In the third more States, quarter about million in the second reportedly up sold in United 14.5 Smartphone (Bilton, The Race to Dominate quarter in the and 9.7 million same 2009. Market, (Nov. Blog <http://bits.blogs.nytimes.com/ York Times Bits New Hamblen, 2011]; of Jan. 2010/ll/01/apple-and-google-excel-in-u-s-smartphone-growth/> [as 12, 2010) top smartphone war has Android on sales (Aug. Computerworld OS *20 <http://www.computerworld.eom/s/article/9180624/OS_war_has_Android_on_top_in_U.S._ 3, 2011].) smartphone_sales> of Jan. [as use
to a or that be or weapon, evidence concealed may destroyed. To others, evidence, himself and safeguard and to the loss of it has been prevent held the reasonable for to arresting officer conduct a warrantless prompt, ‘search of the arrestee’s and the area “within his immediate control”— the construing that mean area from he phrase might within which gain ” of a or (Chadwick, destructible evidence.’ possession weapon (1969) U.S. Chimel v. quoting 395 U.S. 763 [23 California 2034].) L.Ed.2d 89 S.Ct. course, be hidden in an Weapons, may arrestee’s in a clothing container on the physical But there is no person. that will apparently “app” turn an iPhone or other any mobile into effective for an use phone weapon were, (and an if against officer there officers arresting would seek presumably to disarm the than files). rather to search data phone Clearly, its any for the justification warrantless search of mobile must come the phone arrest, that the arrestee the possibility might, during destroy evidence stored the on phone.
Once a mobile has been seized from an arrestee and is under the phone arrestee, exclusive the the control of is in police, who also police custody, cannot destroy evidence stored on it.6 At that any point search of its stored warrant, data would seem to for no require “when is shown to exigency search, the need an for immediate the Warrant Clause the support line places where be searched comes point property under exclusive dominion of police As the authority.” ante, 93-94, majority 6),
107 claim, left, then, a mobile majority, accepted by are with We the arrestee’s person, may, and carried on like other items clothing phone, has been Edwards, a even after the item without warrant under be searched if could have been searched into it custody, secured and the taken suspect 803-804, Edwards, U.S. at (See pp. 415 of arrest. time place effect, containers, law, in 807-808.) to and small clothing physical As when he was an item that was on arrestee’s person fiction that indulges evi- to destruction of his thus vulnerable detained still on person—and is and the item the arrestee is in dence—notwithstanding safely custody U.S. 466 (See Yorkv. Belton 453 in control. New securely police Brennan, J.) (dis. [characterizing S.Ct. 101 opn. 2860] Belton, to to a vehicle interior be searched incident which allowed holding arrest, of a car is within the always as “a fiction—that interior resting on car”]; in the of an who has been recently immediate control arrestee Butterfoss, By: Contemporaneity As Time Goes Elimination of (1986) 21 Harv.C.R.-C.L. in Search and Cases Brevity Factors Seizure read, a “radical shift” in L.Rev. Edwards [broadly represented to exigency to the delayed-search by exception approach problem, itself].) rule rule traditional contemporaneity displaced more that the defendant in “was no imposed Edwards Beyond observing (Edwards, supra, than his had been taken from him earlier if clothes upon” 805), not its reasons for the Edwards court did explain to arrest. In warrantless searches incident allowing delayed particular, court did not what interest justified delayed explain police control. But search once the arrestee and his or her effects are safely police (id. 803-804, 4) cited court by pp. decisions appeals avoid or logistically embarrassing public the rationale to awkward suggest (See (5th 1970) Cir. F.2d searches. U.S. Gonzalez-Perez in a examining officers are not to stand arresting required public place [“The such or on the of the defendant in order for other evidence papers admissible.”]; F.2d (1st be v. DeLeo Cir. evidence to so, not arrested for serious crime would be every to [“Were when search where and humiliating subjected thorough possibly to an arrestee’s actual person This rationale makes sense as apprehended.”].) items that are issue in Edwards—but its clothing—the applicability such removed from the arrestee’s and secured easily police, possession choices as mobile is doubtful. With such items phones, warrant- thorough search or limited an awkward cursory on-the-spot Rather, the can be taken from the item less search the station house. service, ed., Grubb, wiping (Australian May thwarts secret (See Remote ZDNet trained do. 18, 2010) <http://www.zdnet.com.au/remote-wiping-thwarts-secret-service-339303239.htm> 3, 2011].) Jan. [as *22 arrestee and held until securely (assuming exists) cause for a search probable U.S. v. (See a warrant has issued. (9th 1981) Cir. F.2d 662 Monclavo-Cruz 1285, [delayed warrantless search of held unreasonable: “The fact purse that an officer a Chimel/Belton search, however, is prevented conducting not a sufficient reason to a search an hour later at the justify station. The (italics rationale for the search protective longer added)].) no applies.” vehicle, the search an Recently, addressing of arrestee’s court arrest, rejected fictional to approach justification a search incident Chimel rationale authorizes instead “that holding to search a vehicle recent when the occupant’s arrestee is only unsecured and within distance of the reaching at the passenger compartment Gant, (Arizona supra, 556 U.S. time of the search.” v. at p. 1719].)
at at in Gant 129 S.Ct. as the court p. Just a narrow adopted Belton, of New so, York too, supra, reading some courts Edwards, commentators have suggested reading narrow in which delayed searches incident to arrest would be se valid per only as to arrestee’s (which actual person cannot be clothing easily from the separated person U.S. v. Schleis arrest). (See at the time of (8th Cir. 582 F.2d briefcase]; "Butterfoss, station [disapproving house search of arrestee’s locked Time Goes The By: Elimination As Contemporaneity Brevity as Cases, Factors in Search and 21 Harv.C.R.-C.L. L.Rev. Seizure 626 [noting reading Edwards as possibility on dependent impossibility arrestee’s until taking clothes were clothes available replacement Indeed, Edwards had jail].) defendant and the objected, court of conviction, had reversed his appeals only grounds the delayed his seizure of clothing warrantless violated the Fourth Amendment to the (Edwards, United States Constitution. italics added.) No issue was as warrantless presented delayed seizure or search of a container carried an arrestee.
Edwards nonetheless and Chadwick items spoke broadly, suggests beyond be clothing may subject to if delayed “immedi- they ately associated with the of the arrestee.” 15; see also id. Robinson (which [describing involved Edwards, container),
search of a small as as as well a search “of the The majority reasonably thus reads person”].) existing high authority as delayed warrantless searches of containers permitting immediately associated with arrestee’s person. is whether the information stored on electronic such question devices here,
as mobile at issue examined a warrant under phones, reasons, the same rationale. For two I would hold it may not. and business
First, earlier, the amount and type as suggested or handheld smartphone can on a mobile information that be stored phone, under the warrantless search and would become subject delayed computer, in a spatial be carried on dwarfs that which can holding, majority the fruits observed suppressing container.8 As one federal district court search, for storing have the mobile “modern cellular phones capacity books, or address information. Unlike immense amounts of private pagers calls, contain and can also incoming cell and outgoing modem record *23 email, books, calendars, and and video voice text messages, pictures. address cell and information on their phones, Individuals can store highly personal on their cell can and conversations thoughts phones record their most private (U.S. v. Park (N.D.Cal., text, and voice and instant messages.” email through *21-*22, 23, 2007, SI) U.S.Dist. Lexis pp. No. CR 05-375 2007 May seen, information omitted.) greater fn. have have even as we Smartphones, storage capacities. and small clothing United States Court’s on holdings spatial
The Supreme and handheld containers were not made with mobile phones, smartphones Electronic devices of which existed at the time—in mind. computers—none the the “contain” in a different from very way cmmpled information manner Robinson, Robinson contained (See in of heroin. cigarette package capsules supra, devices, indeed, 223.) are even “contain- 414 U.S. at Electronic not p. of As the Ohio ers” within the the court’s search decisions. meaning Court, to a mobile of the container cases rejecting Supreme application noted, container’ have under the banner of ‘closed “[o]bjects falling phone, objects. been of other traditionally holding physical physical objects capable Indeed, situation, that the United Court has stated in Supreme States ” (State v. of another object holding object.’ ‘container’ means ‘any capable Smith New York v. 949, 954], (2009) 124 St.3d 163 N.E.2d quoting Ohio [920 Belton, supra, 4.)9 453 U.S. at fn. nondigital in the majority private that information can be carried observes substantial ante, 96.) argument (Maj. Implicit majority’s forms letters and in the is opn., of diaries. it, inventory diary assumption police may only take a letter from an arrestee and that warrant, through this court nor the United may, but without a read all of its contents. Neither Supreme States held. Court has so “ any object holding The Belton court stated: capable of another ‘Container’ here denotes consoles, object. glove compartments, receptacles or other open It thus includes closed boxes, luggage, bags, clothing, as anywhere compartment, well passenger located within the Belton, 460-461, 4.) (New supra, As Belton clearly York v. fn. pp. and the like.” 453 U.S. at containing objects, majority’s only objects physically of reliance on case spoke other “container,” expectation the arrestee’s proposition any for the whatever the extent of ante, it, misplaced when it (maj. is privacy opn., in be searched incident arrest storage data devices. Still communication and comes to mobile and other electronic 2157], United States Ross less is S.Ct. point court in Ross declined to which did not even involve a search incident to arrest. That buckets, trunks, bags, locked lunch and distinguish among probable “paper cause searches of Second, the grounds for an deeming rights arrestee have lost privacy person in data stored on his or her do not to the apply interest privacy Robinson, Court, electronic devices. In with Supreme quoting approval case, from New York that while explained searches “ unlawful, ‘[sjearch are ordinarily person becomes lawful discovered, law grounds when for arrest and accusation have been ” in the act subjecting body accused physical to its dominion.'’ (Robinson, Edwards, added.) italics In the court reasoned that where state has taken into lawfully custody, though “ not all his interests privacy destroyed, ‘does—for at least a own his reasonable time and to a reasonable extent—take out realm of protection interest means weapons, escape, ” (Edwards, 808-809, evidence.’ 415 U.S. at added.) italics pp. Citing Edwards, Robinson the court “searches of the subsequently distinguished in which the person,” arrest created “reduced expectation[] privacy,” from searches of possessions within arrestee’s control.
The warrantless search an of arrestee’s thus rests on a person relatively intuitively correct idea: the lawful of simple, police, the having custody individual, have the the necessarily authority to search and body arrestee’s arrested, seize of anything find there. been importance they Having lawfully with his or her under the and the custody control of the police, individual can no longer claim in full the he or she personal privacy follow, however, ordinarily enjoys. “ It does not the also have police ” (Robinson, ‘dominion’ 232) 414 U.S. at the over p. entirety videos, stored messages, and memoranda other an photographs, records arrestee be a may carrying on mobile or An phone individual smartphone. lawfully arrested and taken into custody loses much his police necessarily or her bodily but does not a in privacy, necessarily suffer reduction privacy the arrestee’s records. That an arrestee’s protects informational “ ” (Edwards, interest in his or her 809) ‘own privacy’ is severely reduced does not a in imply reduction corresponding privacy data. business Even when to be stored on device they a happen carried on the these records are distinct from the person, clearly arrestee.
Because the data stored aon mobile or other electronic device is phone easily from the in distinguished arrestee’s actual person, light (id. 822) orange hardly crates” carried in requires automobiles that an arrestee’s mobile phone, smartphone computer clothing crumpled or handheld as be treated same cigarette package. involved invasion of informational extraordinary potential devices, smart- hold mobile phones, I would data stored on such searching war ordinarily subject delayed, are not and handheld computers United existing In terms to arrest. provided rantless search incident on an stored search the information authority, Court States Supreme search of be device should treated mobile similar arrestee’s phone “of the rather than search an arrestee’s immediate control” an item “within Once an arrestee’s person.” dominion of “under exclusive securely mobile or similar device phone (id. authorize longer itself no serves to 15), authority” its warrantless search of stored data. mobile
This is not to never examine or search arrestee’s say police be person may without a Devices carried on the arrestee’s warrant. phone device, amounting and secured. Some examination seized folders, (See, v. Wurie e.g., of its data also be reasonable. might arrestee’s mobile (D.Mass. 106-107 F.Supp.2d [when number and originating officer it and observed rang, flipped open “wallpaper” address].) led to residence And arrestee’s discovery photograph, have imminent loss of evidence where officers reason fear arresting device, Immediate or some other makes retrieval of exigency advisable, information warrantless examination search of device 14, 2008, (See, (N.D.Ind., Lottie Jan. justified. e.g., would U.S. v. 3:07cr51RM) No. 2008 U.S.Dist. Lexis *9 had reason [officers transaction, believe that “unknown but large drug potentially accomplices *25 armed,” were countersurveillance conducting police opera- present tion, and the concern for officers raising safety public].) further, however,
The much holding, allowing majority’s goes apparently blanche, with no leisure showing exigency, rummage carte that can be carried the wealth of business information through because the device was merely on a mobile or handheld computer sanctions a highly taken from arrestee’s thus majority person. search, neither the warrant unjustified meeting intrusive and one type nor the reasonableness of the Fourth Amendment requirement requirement noted, As the United States Constitution. a commentator has courts “[i]f rule, is the of a custodial subject anyone subject this it would who adopted arrest, violation, traffic to a into virtual foray even preapproved of their most intimate communications and photographs warehouse (Orso, Phones, Searches, cause.” probable Cellular Warrantless and the New Frontier Fourth Amendment Jurisprudence, 50 Santa Clara L.Rev. at United States Court Supreme authority does not compel overly rule, permissive I cannot agree its adoption.
Moreno, J., concurred. notes no (maj. opn., evidence of pp. exigency was in this case—no evidence that the text presented messages on defend- not, event, ant’s were subject to imminent loss and could in be phone any obtained from defendant’s cellular provider.7 did challenge phone, Defendant not only seizure of his search stored on data police probable it. Nor do I contend the needed a warrant or cause phone to take defendant’s secured, warrant, from him and secure the phone it. Once could have been searched later if a cause, founded on probable issued for search. argument, At Attorney oral smartphones General noted that data some can be remotely might destroy an wiped, accomplice allow evidence on the phone even custody while the in phone police argument arrestee remains in control. As an for searching, proves suspect this much. too A arrested his or her home office might computer by also leave behind destroyed accomplice with evidence that could be an custody, while the possibility arrestee but does entitle computers contents of such or a probable cause search warrant. In either circumstance (home computer computer) waiting or handheld a warrant immediate search without might perspective policing, be desirable from the of efficient but “the mere fact law justify disregard enforcement be made more efficient can never itself Fourth (Mincey 2408].) Amendment.” 98 S.Ct. Arizona event, any appears wiping by removing In it that remote smartphone’s can avoided container, battery storing being and/or in a shielded as law enforcement officers