Judge To Decide If Police Can Search Cell Phones

Ryan Calo, a residential fellow at the Center for Internet & Society, is quoted in the San Mateo County Times on whether police searching cell phones without a search warrant violates a person's Fourth Amendment rights:

Attorneys for a San Francisco man are trying to set a legal precedent that would force police to obtain a search warrant before going through the cell phone of a person who has been arrested.

The issue is a highly contested one because technology has made it possible to carry a wide array of personal information on phones, including photos, e-mail messages and documents such as tax returns, attorneys said.

Under current state law, police can search cell phones at the time they arrest someone. However, privacy advocates say that is a violation of a person's Fourth Amendment rights, which guard against unreasonable search and seizure.

A San Mateo County Superior Court judge will consider the issue at a hearing Thursday. A separate but similar case is currently before the California Supreme Court.


This case and others like it shine a light on the legal effects of a technological revolution. When search and seizure rules were formulated, devices such as the iPhone didn't exist. Now that they are here, the judicial system has to catch up, said Ryan Calo, a residential fellow at the Stanford University Center for Internet and Society.

"Similar questions are popping up all over the place," he added.

Police are allowed to search a person in order to keep that person from destroying evidence or bringing contraband into a jail, he noted. They can seize a phone as well, but they should turn the phone off and wait for a warrant before searching it, Calo said.

One of those cases is before the California Supreme Court, and it involves a man convicted in 2008 of selling Ecstasy pills to an undercover officer in Thousand Oaks. Gregory Diaz is fighting his conviction, saying the police used information illegally taken from his cell phone in their case against him. Prosecutors expect a decision sometime this year, said Steve Wagstaffe, San Mateo County's chief deputy district attorney.

"It would mean we would have to go through the warrant process every time," he said regarding possible consequences of a rule banning the cursory searches. "It consumes resources and time."