Cops are coming for your cellphone, again

You may have thought the contents of your cellphone were private. Sadly, the very recent decision in People v. Sandee, 15 Cal. App. 5th 294 (2017), illustrates law enforcement's constant efforts to gain access to all private data.

When the U.S. Supreme Court ruled more than 15 years ago police officers may arrest a driver for not wearing a seat belt, little did we know that decision would place officers in a position to get into your cellphone. However, unsurprisingly, here we are.

A bit of legal history. In Atwater v. City of Lago Vista, 532 U.S. 318 (2001), the Supreme Court found there was no constitutional impediment to police officers arresting an individual for an offense that could only be punished by a minor fine, such as driving a car in violation of the state's seatbelt law. "If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." A few years later in Virginia v. Moore, 553 U.S. 164 (2008), the Supreme Court held an officer could lawfully arrest an individual for a minor crime (driving on a suspended license) even though state law expressly barred taking the driver into custody.

Under Fourth Amendment jurisprudence, officers may search an individual incident to arrest. In theory, such a search was intended to allow the officer to collect evidence of the crime and/or to protect the officers from violence. In People v. Diaz, 51 Cal. 4th 84 (2011), the California Supreme Court held that when an officer arrests an individual, the officers were free to search the individual's cellphone. Combining Moore/Atwater and Diaz, officers may arrest an individual for the most minor crime, and search any cellphone in his/her possession, even if the cellphone could not possibly contain evidence of the individual's alleged crime. Under those opinions, virtually anyone who drives, walks or bikes was subject to having the local cop read the most private data stored in his/her cellphone.

Surprisingly, the U.S. Supreme Court came to the rescue. In Riley v. California, 134 S. Ct. 2473 (2014), the court held the Fourth Amendment requires a search warrant before an officer may a search a cellphone taken from an arrested individual. Riley found a cellphone was different in nature and kind from objects that prior courts had permitted to be searched incident to arrest, such as wallets, purses and containers. "Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee's person." "Cell phones ... place vast quantities of personal information literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search considered [in prior decisions]."

That the Supreme Court found cellphones were qualitatively different than other objects one might carry, and thus must be treated differently under the Fourth Amendment, was of no moment to the court in Sandee. That case involved another criminal justice "feature" almost as ubiquitous as traffic violations -- the search clause. Almost no defendant leaves a California courtroom after having been found guilty -- by plea or trial -- without being subject to a search clause or search condition, even those defendants whose crimes are so petty that they are not supervised by a probation officer but are placed on court probation.

Commonly, a search condition authorizes a police officer to search a person's home, car, person and objects under their control (e.g., purse, lunchbox) at any time, for any reason or no reason at all. The only restraint is that the officer must know the individual is subject to a search clause -- and police computers are awfully good at containing all the data on us they want. The officer then can search the individual as thoroughly as the officer wishes, though the individual was doing nothing more than walking down the street, a passenger in another's car or in another's residence when officers arrived for reasons unrelated to that individual.

The issue in Sandee was whether a search clause authorized an officer to search an individual's cellphone. We know from Riley, if we didn't already know from living in America, that virtually everyone carries a cellphone. A cellphone, as Riley pointedly observed, is really a mini-computer that stores millions of pages of data about us -- medical, financial, personal, etc.

Officers stopped Sandee because she did not come to a complete stop at a stop sign while riding her bike. In response to questioning, Sandee admitted she was on probation with a search clause. The officer promptly searched her cellphone, reading texts which suggested she was involved in drug trafficking. The officers found additional evidence, and she was charged with drug offenses.

In discussing the warrantless search of Sandee's cellphone, Sandee conceded Riley had held that a warrant was needed to search a cellphone, even if the individual had been lawfully arrested. However, the court noted Sandee, as a condition of her misdemeanor probation in a prior case, agreed to a search of her "property" and "personal effects" "at any time with or without a warrant, with or without reasonable cause." Sandee held "a reasonable, objective person" would understand that search condition would extend to a cellphone, and thus the officer's warrantless search of her cellphone did not violate the Fourth Amendment. Their reasoning:

"The probation search condition is worded very broadly and contains no language whatsoever that would limit the terms 'property' and 'personal effects' to exclude Sandee's cell phone or other electronic devices and the data stored on them. As a cell phone is indisputably the property of the person who possesses it and constitutes part of his or her personal effects, a reasonable person would understand the terms 'property' and 'personal effects' to include Sandee's cell phone and the data on it."

Sandee rejected the contrary view adopted by the 9th U.S. Circuit Court of Appeals in United States v. Lara, 815 F.3d 605 (2016).

Sandee's analysis is at odds with at least the spirit of Riley if not its letter. The U.S. Supreme Court flatly rejected the proposition that cellphones were no different than other property an individual might carry, and thus should be subject to a search by an officer following a lawful arrest. Riley held the Fourth Amendment required a search warrant, based a showing of probable cause, to search a cellphone by one recently arrested because a cellphone is a unique repository of vast quantities of private information. Hence, it is all the more compelling that an officer who has no reason to conduct a search or only a rough suspicion to justify a search should be barred from searching an individual's cellphone, even if the individual is on probation.

Sandee does offer a fig-leaf of protection, maybe. Sandee argued her cellphone's privacy was protected by California's Electronic Communications Privacy Act, Penal Code Section 1546 et seq. The ECPA requires a search warrant for a lawful search of a cellphone, though several exceptions are noted. Effective Jan. 1, 2017, there is a new exception: An officer may conduct a search of a cellphone if the individual "is subject to an electronic device search as a clear and unambiguous condition of probation, mandatory supervision, or pretrial release." Pen. Code Section 1546.1. In light of the ECPA, the Court of Appeal opined, "it may be reasonable, after the ECPA became effective, for a law enforcement officer conducting a search to interpret a general probation search condition authorizing a warrantless search of the probationer's property as excluding searches of the probationer's electronic device information, such as cell phone data," absent the "clear and unambiguous condition" required by statute.

During the recent television presentation of Ken Burns' "The Vietnam War," the narrator reminded us of the role played by the "domino theory" in seducing some Americans to support United States' involvement in that war. The domino theory argued the fall of one country to Communism would inevitably lead to the take-over of neighboring countries. While that political theory has long be discredited, the notion that undermining one basic right will lead to the loss of other rights seems to aptly describe the erosion of personal and privacy rights. That is, once the courts allowed cops to arrest anyone for very minor "crimes" -- including offenses that could not result in a jail sentence -- those judges set-up the process by which those same cops could strip away their privacy.

Riley and the ECPA sought to provide some guarantee of privacy to the contents of our cellphones. Denied direct access, courts and prosecutors like the ones in Sandee sought, by another means, to evisceration of the privacy of the data in our cellphones. They will just insist a defendant waive his/her privacy or choose prison instead. The board game just changes a bit. If we take privacy seriously, we should make that forced choice unavailable.