California nears reversal of warrantless cellphone searches

| 9/8/2011

California lawmakers have advanced a bill to the governor that would reverse a court ruling that allows police 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 state lawmakers went to work in Sacramento to counter it. The Senate voted 31-4 to sign off on Assembly changes to a bill to clarify that officers must first obtain a search warrant when there is probable cause to believe a suspect’s phone contains evidence of a crime. SB914 now moves to Gov. Jerry Brown’s desk.

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

“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,” Sen. Mark Leno, D-San Francisco, said in a statement.

To ease concerns from 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.”

“The meaning of ‘unreasonable search and seizure’ is self-evident to most, but overly aggressive law enforcement tactics have lead to this outcome,” Rajkovacz said.

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

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