Lead Opinion
Opinion
We granted review in this case to decide whether the Fourth Amendment to the United States Constitution permits law enforcement officers, approximately 90 minutes after lawfully arresting a suspect and transporting him to a detention facility, to conduct a warrantless search of the text message folder of a cell phone they take from his person after the arrest. We hold that, under the United States Supreme Court’s binding precedent, such a search is valid as being incident to a lawful custodial arrest. We affirm the Court of Appeal’s judgment.
Factual Background
About 2:50 p.m. on April 25, 2007, Senior Deputy Sheriff Victor Fazio of the Ventura County Sheriff’s Department witnessed defendant Gregory Diaz
Fazio transported defendant to a sheriff’s station, where a detective seized the cell phone from defendant’s person and gave it to Fazio. Fazio put it with the other evidence and, at 4:18 p.m., interviewed defendant. Defendant denied having knowledge of the drug transaction. After the interview, about 4:23 p.m., Fazio looked at the cell phone’s text message folder and discovered a message that said “6 4 80.”
Defendant was charged with selling a controlled substance (Health & Saf. Code, § 11379, subd. (a)). He pleaded not guilty and moved to suppress the fruits of the cell phone search—the text message and the statements he made when confronted with it—arguing that the warrantless search of the cell phone violated the Fourth Amendment. The trial court denied the motion, explaining: “The defendant was under arrest for a felony charge involving the sale of drugs. His property was seized from him. Evidence was seized from him. [f] . . . [I]ncident to the arrest[,] search of his person and everything that that turned up is really fair game in terms of being evidence of a crime or instrumentality of a crime or whatever the theory might be. And under these circumstances I don’t believe there’s authority that a warrant was required.” Defendant then withdrew his not guilty plea and pleaded guilty to transportation of a controlled substance. The trial court accepted the plea, suspended imposition of sentence, and placed defendant on probation for three years.
The Court of Appeal affirmed, finding that under governing high court precedent, because the cell phone “was immediately associated with [defendant’s] person at the time of his arrest,” it was “properly subjected to a delayed warrantless search.” We granted defendant’s petition for review.
The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Under this provision, as the United States Supreme Court has construed it, warrantless searches—i.e., “searches conducted outside the judicial process, without prior approval by judge or magistrate”—“are per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.” (Katz v. United States (1967)
One of the specifically established exceptions to the Fourth Amendment’s warrant requirement is “a search incident to a lawful arrest.” (United States v. Robinson (1973)
The People argue that the warrantless search in this case of the cell phone’s text message folder was valid as a search incident to defendant’s lawful
Resolution of this issue depends principally on the high court’s decisions in Robinson, Edwards, and Chadwick. In Robinson, a police officer arrested the defendant for driving with a revoked operator’s permit. (Robinson, supra,
In Edwards, after lawfully arresting the defendant late one night for attempting to break into a post office, police took him to jail and placed him in a cell. (Edwards, supra,
In Chadwick, supra,
Under these decisions, the key question in this case is whether defendant’s cell phone was “personal property . . . immediately associated with [his] person” (Chadwick, supra,
We hold that the cell phone was “immediately associated with [defendant’s] person” (Chadwick, supra,
The relevant high court decisions do not support the view that whether police must get a warrant before searching an item they have properly seized from an arrestee’s person incident to a lawful custodial arrest depends on the item’s character, including its capacity for storing personal information. As noted above, Chadwick explains that a delayed warrantless search “of the person” (Chadwick, supra,
Moreover, in analogous contexts, the high court has expressly rejected the view that the validity of a warrantless search depends on the character of the searched item. In United States v. Ross (1982)
Regarding the particular, focus of defendant and the dissent on the alleged storage capacity of cell phones, for several reasons the argument is unpersuasive. First, the record contains no evidence regarding the storage capacity of cell phones in general or of defendant’s cell phone in particular. Second, neither defendant nor the dissent persuasively explains why the sheer quantity of personal information should be determinative. Even “small spatial container[s]” (dis. opn. of Werdegar, J., post, at p. 105) that hold less information than cell phones may contain highly personal, intimate and private information, such as photographs, letters, or diaries.
Finally, adopting the quantitative approach of defendant and the dissent would create difficult line-drawing problems for both courts and police officers in the field. How would a court faced with a similar argument as to another type of item determine whether the item’s storage capacity is constitutionally significant? And how would an officer in the field determine this question upon arresting a suspect? Defendant and the dissent offer no guidance on these questions. Their approach would be “inherently subjective and highly fact specific, and would require precisely the sort of ad hoc determinations on the part of officers in the field and reviewing courts” that the high court has condemned. (Thornton v. United States (2004) 541 U.S.
Defendant next argues that, in determining whether a warrant was necessary, we should distinguish between the cell phone itself and its contents. According to defendant, “[t]here is little about a cell phone’s content that is conceptually linked to or inextricably associated with the physical body or the inherent attributes of the arrestee’s person. A cell phone’s data content is not at all like a pair of pants or even a piece of paper folded up inside a wallet that has been tucked inside the pocket of a pair of pants.” It “cannot be worn or ‘carried’ on one’s person.” “[T]he nature of the evidence that a cell phone may contain, and the fact that the cell phone ‘container’ is readily differentiated from the cell phone ‘content,’ warrants treating the cell phone content differently from the seized cell phone itself.” The dissent makes a similar argument, distinguishing between “the arrestee’s actual person” and the cell phone’s content—i.e., the stored data—and arguing that the loss of “bodily privacy” that justifies a warrantless “search of an arrestee’s person” upon arrest does not also justify the search of a cell phone found upon the arrestee’s person. (Dis. opn. of Werdegar, J., post, at p. 110.)
These arguments are inconsistent with the high court’s decisions. Those decisions hold that the loss of privacy upon arrest extends beyond the arrestee’s body to include “personal property . . . immediately associated with the person of the arrestee” at the time of arrest. (Chadwick, supra,
The dissent makes several arguments in addition to defendant’s, but they are also unpersuasive. Although conceding that Robinson, Edwards, and Chadwick, “reasonably read,” authorize delayed warrantless searches “of containers” immediately associated with an arrestee’s person, the dissent asserts that cell phones are exempt from this rule because they are not “ ‘containers’ within the meaning of the high court’s search decisions.” (Dis. opn. of Werdegar, J., post, at p. 109.) However, application of the rule of Robinson, Edwards, and Chadwick turns not on whether the item in question constitutes a “container,” but on whether it is “property,” i.e., a “belongingG”
The dissent also errs in asserting that the high court’s “rationale” for allowing delayed warrantless searches incident to arrest is of “doubtful” applicability to “items that are easily removed from the arrestee’s possession and secured by the police.” (Dis. opn. of Werdegar, J., post, at p. 107.) In Edwards, the high court declared it “plain that searches and seizures that [may] be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention.” (Edwards, supra,
For the reasons discussed above, we hold that, under the United States Supreme Court’s binding precedent, the warrantless search of defendant’s cell phone was valid. If, as the dissent asserts, the wisdom of the high court’s decisions “must be newly evaluated” in light of modem technology (dis. opn. of Werdegar, 1., post, at p. 104), then that reevaluation must be undertaken by the high court itself.
The judgment of the Court of Appeal is affirmed.
Kennard, Acting C. J., Baxter, J., Corrigan, J., and George, J.,
Notes
Fazio had to manipulate the phone and go to several different screens to access the text message folder. He did not recall whether the cell phone was on when he picked it up to look through it.
The area within an arrestee’s immediate control is “ ‘the area from within which [the arrestee] might gain possession of a weapon or destructible evidence.’ [Citations.]” (Chadwick, supra,
The People do not contest that defendant had a protected expectation of privacy in the contents of his text message folder. For purposes of this opinion, we therefore assume defendant had such an expectation, and do not consider the issue.
Defendant does not question the legality of either his arrest or his phone’s warrantless seizure. He challenges only the validity of the warrantless search of the phone’s text message folder.
The approximately 90-minute delay between defendant’s arrest and the search of his cell phone was substantially similar to the 90-minute delay the high court held to be too remote in Chadwick.
Defendant’s argument implicitly recognizes that courts commonly hold that delayed warrantless searches of wallets found on arrestees’ persons are valid searches incident to arrest. (See, e.g., U.S. v. Passaro (9th Cir. 1980)
Given our conclusion, we need not address the People’s argument that an exigency existed because a cell phone’s contents “are dynamic in nature and subject to change without warning—by the replacement of old data with new incoming calls or messages; by a mistaken push of a button; by the loss of power; by a person contacting the cellular phone provider; or by a person pre-selecting the ‘cleanup’ function on the cellular phone, which limits the length
In reaching this conclusion, the high court in Ross rejected the view of several lower court judges who had concluded that, based on differing expectations of privacy, the warrantless search of a brown paper bag in Ross’s stopped car was valid, but the warrantless search of a zippered leather pouch was not. (Ross, supra,
In Arizona v. Gant (2009)
The dissent does not question that police may examine personal photographs found upon an arrestee’s person, but objects that the high court has not held that police may read the contents of a letter or diary seized from an arrestee’s person. (Dis. opn. of Werdegar, J., post, at p. 109, fn. 8.) However, several of the court of appeals decisions the high court in Edwards cited with approval on the issue of delayed searches {Edwards, supra, 415 U.S. at pp. 803-804, fn. 4) upheld the warrantless examination, incident to arrest, of diaries or personal papers found upon the arrestee’s person. (See U.S. v. Gonzalez-Perez (5th Cir. 1970)
Were the rule otherwise, those carrying small spatial containers, which are legally subject to seizure and search if found upon the person at the time of arrest, would find little solace in discovering that their intimate secrets would have been protected if only they had used a device that could hold more personal information.
According to the United States Department of Justice, drug traffickers commonly use disposable cell phones, because they are relatively inexpensive and difficult to trace. (National Drug Intelligence Center, United States Department of Justice, Midwest High Intensity Drug Trafficking Area Drug Market Analysis 2009 (Mar. 2009) <http://www.justice.gov/ ndic/pubs32/32775/distro.htm> [as of Jan. 3, 2011].) Such phones have limited storage capacity. (Ferro, Cell phones: disposable mobile phone finally hits the US (May 31, 2008) TECH.BLORGE Technology News <http://tech.bIorge.eom/Structure:%20/2008/05/31/cellphones-disposable-mobile-phones-finally-hits-the-us/> [as of Jan. 3, 2011].)
Defendant insists that Edwards is “limited by its facts to the delayed search of an article of clothing.” However, the court’s discussion more broadly addressed “other belongings” (Edwards, supra,
The word “container” does not appear in Robinson and Edwards. It appears once in Chadwick, in a footnote where the high court explained that the defendant’s principal privacy interest in the footlocker was “not in the container itself . . . but in its contents.” (Chadwick, supra, 433 U.S. at pp. 13-14, fn. 8.)
The high court did discuss containers in the decisions we have cited as involving “analogous contexts.” (Ante, at p. 95.) In this respect, our analysis is consistent with the weight of authority. (State v. Boyd (2010)
Not satisfied with the high court’s explicit explanations, the dissent, citing just two of the 20 court of appeals decisions Edwards string-cited on the point (see Edwards, supra, 415 U.S. at pp. 803-804, fn. 4), asserts that the high court’s “rationale is to avoid logistically awkward or embarrassing public searches.” (Dis. opn. of Werdegar, J., post, at p. 107.) This assertion finds no support in the language of the high court’s decisions, no doubt because making the validity of a delayed search turn on the logistics or potential embarrassment of a public search would, like the dissent’s quantitative approach, require “the sort of ad hoc determinations on the part of officers in the field and reviewing courts” that the high court has condemned. (Thornton v. United States, supra,
Only a few published decisions exist regarding the validity of a warrantless search of a cell phone incident to a lawful custodial arrest. Most are in accord with our conclusion. (See, e.g., U.S. v. Murphy, supra,
In a closely divided (four to three) opinion, the Supreme Court of Ohio held otherwise, reasoning that “because a person has a high expectation of privacy in a cell phone’s contents,” police, after seizing a cell phone from an arrestee’s person, “must. . . obtain a warrant before intruding into the phone’s contents.” (State v. Smith (2009)
Retired Chief Justice of California, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Concurrence Opinion
The majority holds that the police may, without obtaining a warrant, view or listen to information electronically stored on a mobile phone that a suspect was carrying when lawfully arrested. The dissent disagrees. I explain why I join the majority rather than the dissent.
On June 8, 1982, California voters enacted an initiative measure known as Proposition 8. Among other things, Proposition 8 added to the California Constitution a “Right to Truth-in-Evidence” provision (Cal. Const., art. I, § 28, former subd. (d) [now subd. (f)(2)]). That provision generally prohibits exclusion of relevant evidence in a criminal proceeding on the ground that the evidence was obtained unlawfully. Because the federal Constitution is “the supreme law of the land” (U.S. Const., art. VI, § 2), and thus prevails over conflicting state constitutional provisions, the state Constitution’s “Right to Truth-in-Evidence” provision does not apply when relevant evidence must be excluded because it was obtained in violation of the federal Constitution’s Fourth Amendment, which prohibits “unreasonable searches and seizures.” As a result, in California criminal proceedings all issues related to the suppression of evidence derived from police searches and seizures are now determined by application of federal constitutional law. (People v. Lenart (2004)
As the majority explains, three decisions of the United States Supreme Court compel the result in this case. Those decisions are United States v. Robinson (1973)
When carried in clothing (rather than inside luggage or a similar container), a mobile phone is personal property that is “immediately associated with the person of the arrestee” (Chadwick, supra,
The dissent asserts that in light of the vast data storage capacity of “smart phones” and similar devices, the privacy interests that the federal Constitution’s Fourth Amendment was intended to protect would be better served by a rule that did not allow police “to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee’s person.” (Dis. opn., post, at p. 111.) The dissent also asserts that the three high court decisions I have mentioned are not binding here because they “were not made with mobile phones, smartphones and handheld computers— none of which existed at the time—in mind.” (Dis. opn., post, at p. 109.) In my view, however, the recent emergence of this new technology does not diminish or reduce in scope the binding force of high court precedents.
I join the majority rather than the dissent because the United States Supreme Court has cautioned that on issues of federal law all courts must follow its directly applicable precedents, even when there are reasons to anticipate that it might reconsider, or create an exception to, a rule of law that it has established. (Rodriguez de Quijas v. Shearson/Am. Exp. (1989) 490 U.S. 477, 484 [
Under the compulsion of directly applicable United States Supreme Court precedent, I join the majority in affirming the Court of Appeal’s judgment.
Dissenting Opinion
I respectfully dissent. The majority concludes police may search the data stored on an arrestee’s mobile phone without a warrant, as they may search clothing (see United States v. Edwards (1974)
The potential intrusion on informational privacy involved in a police search of a person’s mobile phone, smartphone or handheld computer is unique among searches of an arrestee’s person and effects. A contemporary smart-phone
Although the record does not disclose the type of mobile phone defendant possessed, I discuss smartphones as well as other mobile phones for two reasons. First, the mle adopted by the majority—that an electronic device carried on the person is for Fourth Amendment purposes indistinguishable from an individual’s clothing or a small spatial container—is broad enough to encompass all types of handheld electronic data devices, including smart-phones such as iPhones and BlackBerry devices, as well as other types of handheld computers. While I disagree with the majority’s holding on the validity of the search here, I agree that the permissibility of a search incident to arrest should not depend on the features or technical specifications of the mobile device, which could be difficult to determine at the time of arrest.
Warrantless searches incident to arrest are justified by the important interests in officer safety and preservation of evidence. “When a custodial arrest is made, there is always some danger that the person arrested may seek
Weapons, of course, may be hidden in an arrestee’s clothing or in a physical container on the person. But there is apparently no “app” that will turn an iPhone or any other mobile phone into an effective weapon for use against an arresting officer (and if there were, officers would presumably seek to disarm the phone rather than to search its data files). Clearly, any justification for the warrantless search of a mobile phone must come from the possibility that the arrestee might, during the arrest, destroy evidence stored on the phone.
Once a mobile phone has been seized from an arrestee and is under the exclusive control of the police, the arrestee, who is also in police custody, cannot destroy any evidence stored on it.
Beyond observing that the defendant in Edwards “was no more imposed upon” than if his clothes had been taken from him earlier (Edwards, supra,
Recently, addressing the search of an arrestee’s vehicle, the high court rejected the fictional approach to justification of a search incident to arrest, holding instead “that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” (Arizona v. Gant, supra,
Edwards nonetheless spoke broadly, and Chadwick suggests items beyond clothing may be subject to delayed warrantless search if they are “immediately associated with the person of the arrestee.” (Chadwick, supra,
The question is whether the information stored on electronic devices such as mobile phones, as at issue here, may be examined without a warrant under the same rationale. For two reasons, I would hold it may not.
The United States Supreme Court’s holdings on clothing and small spatial containers were not made with mobile phones, smartphones and handheld computers—none of which existed at the time—in mind. Electronic devices “contain” information in a manner very different from the way the cmmpled cigarette package in Robinson contained capsules of heroin. (See Robinson, supra,
The warrantless search of an arrestee’s person thus rests on a relatively simple, intuitively correct idea: the police, having lawful custody of the individual, necessarily have the authority to search the arrestee’s body and seize anything of importance they find there. Having been lawfully arrested, with his or her person under the custody and control of the police, the individual can no longer claim in full the personal privacy he or she ordinarily enjoys. It does not follow, however, that the police also have “ ‘dominion’ ” (Robinson, supra,
Because the data stored on a mobile phone or other electronic device is easily distinguished from the arrestee’s actual person, and in light of the
This is not to say police may never examine or search an arrestee’s mobile phone without a warrant. Devices carried on the arrestee’s person may be seized and secured. Some examination of the device, not amounting to a search of its data folders, might also be reasonable. (See, e.g., U.S. v. Wurie (D.Mass. 2009)
The majority’s holding, however, goes much further, apparently allowing police carte blanche, with no showing of exigency, to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee’s person. The majority thus sanctions a highly intrusive and unjustified type of search, one meeting neither the warrant requirement nor the reasonableness requirement of the Fourth Amendment to the United States Constitution. As a commentator has noted, “[i]f courts adopted this rule, it would subject anyone who is the subject of a custodial arrest, even for a traffic violation, to a preapproved foray into a virtual warehouse of their most intimate communications and photographs without
Moreno, J., concurred.
The separately concurring justice correctly observes that we must follow directly applicable decisions from the United States Supreme Court even if we think them due for reexamination. (Rodriguez de Quijas v. Shearson/Am. Exp. (1989)
The facts of the present case, as I will explain, differ in important respects from those that gave rise to the United States Supreme Court decisions in Robinson, Edwards and Chadwick. These precedents, therefore, provide no basis for evading this court’s independent responsibility to determine the constitutionality of the search at issue. While we of course have no authority to overrule them, we may and should refrain from applying their language blindly to new and fundamentally different factual circumstances.
PCMag.com’s online encyclopedia defines a smartphone as “[a] cellular telephone with built-in applications and Internet access. Smartphones provide digital voice service as well as text messaging, e-mail, Web browsing, still and video cameras, MP3 player and video and TV viewing. In addition to their built-in functions, smartphones can run myriad applications, turning the once single-minded cellphone into a mobile computer.” (<http://www.pcmag.com/ encyclopedia_term/0,2542,%20t=Smartphone&i=51537,00.asp> [as of Jan. 3, 2011].)
Apple’s iPhone 4, ETC’s Droid Incredible, and the BlackBerry Torch all can store up to 32 gigabytes of data, which could include thousands of images or other digital files. (See <http://www.apple.com/iphone/specs.htmI>; <http://www.htc.com/us/products/droid-incredibIeverizon?view= 1-1 &sort=0#tech-specs>; and <http://us.blackberry.com/smartphones/ blackberrytorch/#!phone-specifications> [all as of Jan. 3, 2011].) On the capabilities of smartphones generally, see Gershowitz, The iPhone Meets the Fourth Amendment (2008) 56 UCLA L.Rev. 27, 29-30.
But see Orso, Cellular Phones, Warrantless Searches, and the New Frontier of Fourth Amendment Jurisprudence (2010) 50 Santa Clara L.Rev. 183, 222 (proposing to distinguish smartphones from “older generation cellular phones” by presence of a touch screen or full keyboard, and to impose stricter limits on searches of smartphones).
In the third quarter of 2010 alone, for example, more than 20 million smartphones were reportedly sold in the United States, up from about 14.5 million in the second quarter of 2010 and 9.7 million in the same quarter of 2009. (Bilton, The Race to Dominate the Smartphone Market, the New York Times Bits Blog (Nov. 1, 2010) <http://bits.blogs.nytimes.com/ 2010/ll/01/apple-and-google-excel-in-u-s-smartphone-growth/> [as of Jan. 3, 2011]; Hamblen, OS war has Android on top in U.S. smartphone sales (Aug. 12, 2010) Computerworld <http://www.computerworld.eom/s/article/9180624/OS_war_has_Android_on_top_in_U.S._ smartphone_sales> [as of Jan. 3, 2011].)
Defendant did not challenge the seizure of his phone, only the search of the data stored on it. Nor do I contend the police needed a warrant or probable cause to take defendant’s phone from him and secure it. Once secured, the phone could have been searched later if a warrant, founded on probable cause, issued for the search.
At oral argument, the Attorney General noted that data on some smartphones can be remotely wiped, which might allow an accomplice to destroy evidence on the phone even while the arrestee remains in custody and the phone in police control. As an argument for warrantless searching, this proves too much. A suspect arrested in his or her home or office might also leave behind a computer with evidence that could be destroyed by an accomplice while the arrestee is in custody, but this possibility does not entitle police to search the contents of such computers without probable cause or a search warrant. In either circumstance (home computer or handheld computer) an immediate search without waiting for a warrant might be desirable from the perspective of efficient policing, but “the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment.” (Mincey v. Arizona (1978)
The majority observes that substantial private information can be carried in the nondigital forms of letters and diaries. (Maj. opn., ante, at p. 96.) Implicit in the majority’s argument is the assumption that police may not only take a letter or diary from an arrestee and inventory it, but may, without a warrant, read through all of its contents. Neither this court nor the United States Supreme Court has so held.
The Belton court stated: “ ‘Container’ here denotes any object capable of holding another object. It thus includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like.” (New York v. Belton, supra, 453 U.S. at pp. 460-461, fn. 4.) As Belton clearly spoke only of objects physically containing other objects, the majority’s reliance on that case for the proposition that any “container,” whatever the extent of the arrestee’s expectation of privacy in it, may be searched incident to arrest (maj. opn., ante, at p. 95) is misplaced when it comes to mobile phones and other electronic communication and data storage devices. Still less on point is United States v. Ross (1982)