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On October 9 Governor Jerry Brown vetoed Senate Bill 914 which would have, in the words from Brown's veto notice, "overturn(ed) a California Supreme Court decision that held that police officers can lawfully search the cell phones of people who they arrest." Brown based his veto on the claim that the courts are better suited to making this kind of ruling than is the legislative branch, suggesting Brown needs a refresher course in the basic strengths and weaknesses of the various branches of government.

Jerry Brown

The case to which Brown refers is California Supreme Court case The People v Gregory Diaz(Electronic Privacy Information Center). The Diaz case involved police reading the text message folder on an arrestee's cell phone some 90 minutes after the actual arrest. While the law clearly grants police officers some relief from 4th Amendment limitations during the course of a lawful arrest, that relief is generally based on the notion that arresting someone can be dangerous and that police officers as a matter of public safety should be allowed to make sure no weapons can be brought to bear on officers or bystanders and that no evidence relevant to the arrest can be destroyed.

The California Supreme Court based its decision on the difference between searching a person and those things normally found on a person such as clothes or jewelry as compared with searching "possessions within an arrestee's immediate control" such as luggage. The Diaz court found cell phones to be more like a wallet than like a piece of luggage, and thus found the police search of that phone was permissible.

In September of 2011 the California State Senate passed SB 914, which the Assembly passed in late August of 2011. SB 914, directly counters the Diaz court:

(c) The California Supreme Court, in People v. Diaz, 51 Cal.4th 84 (2011), held that the information in these devices may be subject to search incident to an arrest without a warrant or other judicial supervision.

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(d) The intrusion on the information privacy and freedom of communication of any person arrested is of such enormity that it must require arresting officers to obtain a warrant to search the information contained in or accessed through an arrested person's portable electronic device, such as a cellular telephone.

How can the state's highest court come to one conclusion while the legislative branch comes to an entirely different conclusion? First, the court is in fact constrained by existing case law where there is no controlling statute. Second, the courts have tremendous limits on their time and ability to research the impact of technological development and, again, must rely on the reasoning of existing case law, even if that case law completely fails to contemplate important differences in circumstances. By contrast, the legislative branches have all the time in the world to hash out the nuances of a matter before voting, and, similarly, are free to look forward to the impacts of a proposed law rather than strictly backwards to existing precedent.

Of course things don't stop there. The Court can make a ruling, the legislature can pass a new law requiring the opposite result in future cases, and the court can then rule that new law unconstitutional. That is how the system of opposed forces, of each branch checking and balancing the others operates. The Governor's veto, and the stated reason for that veto, turns topsy-turvy the reality of which branch is better suited to deal with the societal impact of new technology, which is bad enough in itself, but in so doing has unwisely enshrined a bad legal decision based on inadequate understanding of the subject matter around which the case revolved, leaving us all a little less safe from unreasonable search.

robert link

Today's Tech Tip: Don't leave anything on your cell that you wouldn't want to see in court. Until the law changes, erase questionable texts as soon as you have read them. Consider your phone as a tool for the prosecution and act accordingly. For a more detailed list of precautions visit Electronic Frontier Foundation's "Cell Phone Guide".

Robert Link