California poised to outlaw warrantless cellphone searches

| 8/24/2011

A bill that is one step away from the governor’s desk would reverse a court ruling that allows police in California to search cellphones in certain instances without a warrant.

In January, the state Supreme Court ruled that law enforcement officers, without a warrant, can search the contents of a cellphone confiscated from anyone under arrest.

The majority of justices said arrestees lose their right of privacy in anything they are carrying when taken into custody.

Shortly after the decision was handed down, a bill was introduced in Sacramento to counter it. On Monday, Aug. 22, the Assembly voted unanimously to advance a bill to overturn the court’s ruling on warrantless cellphone searches.

The bill – SB914 – now awaits Senate approval of changes before it moves to Gov. Jerry Brown’s desk.

Sen. Mark Leno, D-San Francisco, said the bill clarifies that officers must first obtain a search warrant when there is probable cause to believe a suspect’s phone contains evidence of a crime.

“This legislation will help ensure that a simple arrest – which may or may not lead to criminal charges – is not used as a fishing expedition to obtain a person’s confidential information,” Leno said in a statement.

He said the privacy safeguards are critical as technology advances and cellphones become much more than simple devices to make phone calls.

In hopes of appeasing law enforcement, the bill includes a provision to continue to allow officers to search cellphones without a warrant when there is an immediate threat to public safety or the arresting officer.

Joe Rajkovacz, OOIDA’s director of regulatory affairs, said the need for California lawmakers to address the issue for probable cause or a warrant to conduct a cellphone search “speaks volumes about the erosion of the protection provided in the Fourth Amendment of the United States Constitution.”

“It shouldn’t be such a grey area. The meaning of ‘unreasonable search and seizure’ is self-evident to most, but overly aggressive law enforcement tactics have led to this outcome,” Rajkovacz said.

He also noted that OOIDA experienced the same behavior in its legal victory over the Minnesota State Patrol and their enforcement procedures on “ill and fatigued” truck drivers.

To view other legislative activities of interest for California, click here.

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