Veto Allows Warrantless Phone Searches to Continue

BY LAUREN BURNHAM

A bill vetoed on Oct. 9 by Governor Jerry Brown, SB 914 would have required California police officers to obtain a warrant before searching the cell phones or other portable electronic devices of arrested suspects.

The bill states that "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 a confiscated electronic device.

SB 914 passed both houses of the California Legislature with little controversy. However, Brown has indicated that he did not see sufficient need for the bill.

The veto notice returning the bill to Congress states that "The courts are better suited to resolve the complex and case-specific issues relating to constitutional search-and-seizures protections."

Meanwhile, civil rights activists and other observers believe that the lobbying efforts of law enforcement was a factor in Brown's decision. The veto was part of a series of legislative decisions that Brown's office described as "action to improve public safety and help law enforcement."

Introduced by California Senator Mark Leno, D-San Francisco, SB 914 responds to a California Supreme Court decision in the case of People v. Diaz in January 2011.

During the arrest of Gregory Diaz on suspicion of dealing Ecstasy, police seized and searched his cell phone without a warrant. A text message found on the phone was used in trial as further evidence for the charge.

The court's decision found the evidence valid, setting a precedent that authorized California police to search the portable electronic devices of arrestees without a warrant. 

According to advocacy groups such as the ACLU and the First Amendment Coalition, the existing law not only threatens crime perpetrators, it also imposes on the right to privacy of all citizens.

A press release by the First Amendment Coalition states that as current law stands, police officers could "search through all the megabytes of files and information stored there, both personal and professional" of the cell phone of a "journalist, blogger, or just an unlucky passerby" in a public situation.

In opposition to the bill were law enforcement officials, who believed that the bill would reduce their effectiveness on duty.

According to the Peace Officers Research Association of California, "Restricting the authority of a peace officer to search an arrestee unduly restricts their ability to apply the law, fight crime, discover evidence valuable to an investigation and protect the citizens of California."

The bill retains the right of officers to confiscate the cell phone of a suspect during an arrest, allowing them to prevent the damage or deletion of evidence. It also provides a clause that allows a warrantless search in emergency situations.

Advocates of the bill contend that this provides officers latitude that would protect them from dangerous situations or loss of information that might result from the bill's restrictions.

Brown received the bill on Sept. 9 and was required to either sign or veto the bill by Oct. 9. 

Law enforcement officials voiced opposition to the bill earlier in the legislation process, but local public agency spokespersons would not comment on the issue for the Malibu Surfside News as the decision deadline approached.