Delayed Warrantless Search of Cell Phone Found on Arrested Person is Valid Under Fourth Amendment

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In People v. Diaz (2011) 51 C.4th 84, 119 C.R.3d 105, 244 P.3d 501, a law enforcement officer arrested defendant, who had a cell phone on his person, for conspiring to sell drugs. The officer transported defendant to a sheriff’s station, where a detective seized the cell phone and gave it to the officer. About 90 minutes after the arrest, the officer conducted a warrantless search of the text message folder of the cell phone. Held, under United States Supreme Court precedent, the search was a valid search incident to arrest.

(a) Search incident to arrest. While warrantless searches are generally per se unreasonable, and therefore violative of the Fourth Amendment, an exception exists for searches incident to a lawful arrest. (51 C.4th 90, citing United States v. Robinson (1973) 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427, 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §147.) The traditional justification for this exception is "the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained." (51 C.4th 90, quoting United States v. Edwards (1974) 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771, 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §153.) Because of the risk that the arrestee may seek to use a weapon, or to conceal or destroy evidence, arresting officers may conduct a prompt warrantless search of the arrestee's person and of the area within the arrestee's immediate control. (51 C.4th 90, citing United States v. Chadwick (1977) 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538, 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §231.)

(b) Governing decisions. Whether the delayed search of defendant's cell phone's text message folder was a valid search incident to arrest turns primarily on the United States Supreme Court's decisions in United States v. Robinson, United States v. Edwards, and United States v. Chadwick. (51 C.4th 91.)

(1) United States v. Robinson. In Robinson, officers discovered a pack of cigarettes containing heroine capsules in a pocket of defendant's coat during a pat-down search. Robinson determined that, during a lawful custodial arrest, police have authority to search the person of an arrestee, and to inspect what they find in the course of that search, whether or not they have reason to believe that the arrestee has evidence or a weapon on his or her person. (51 C.4th 91.)

(2) United States v. Edwards. In Edwards, police seized and searched defendant's clothes 10 hours after his arrest, and found paint chips from the window through which he had attempted to break into a post office. Edwards held that the warrantless seizure of the clothes and the warrantless search of them for paint chips were valid as a search incident to arrest. Once a suspect is in custody, the effects in the suspect's possession during the arrest may be seized and searched even though a substantial period of time has elapsed between the arrest and the seizure and search. (51 C.4th 91.)

(3) United States v. Chadwick. Chadwick cut back on the "seemingly broad rule" announced in Edwards. In Chadwick, officers arrested defendants as defendants loaded a footlocker, which the officers had probable cause to believe contained illegal contraband, into their car. Ninety minutes after the arrest, and without consent or a warrant, the officers searched the footlocker and discovered marijuana. Chadwick held that the warrantless search of personal property not immediately associated with the person of the arrestee seized during an arrest cannot be justified as incident to the arrest if it is remote in time or place from the arrest or no exigency exists. The case distinguished Robinson and Edwards as involving warrantless searches of items found on the arrestee's person, rather than of possessions within the arrestee's immediate control. (51 C.4th 92.)

(c) Current case. Here, the cell phone, like the cigarette package in Robinson and the clothing in Edwards, but unlike the footlocker in Chadwick, was personal property on defendant's person at the time of the arrest. Thus, as in Edwards, the delayed warrantless search was a valid search incident to defendant's lawful custodial arrest. (51 C.4th 93.)

(d) Character of property. Whether a warrantless search of property taken from the arrestee's person is valid does not turn on the character of the property, including its capacity to store personal information. Rather the seizure and search is valid because of the reduced expectation of privacy resulting from the arrest. (51 C.4th 94.) In an analogous context involving the search of a lawfully stopped vehicle which officers have probable cause to believe contains contraband, United States v. Ross (1982) 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572, 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §236, expressly rejected the view that the validity of the warrantless search depends on the character of the item seized. In this context, the police may examine the contents of any containers found within the passenger compartment. "The scope of a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted." New York v. Belton (1981) 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768, 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §148, held that, as an incident of the arrest of the occupant of a car, the police may examine the contents of any containers found in the passenger compartment. The lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have. (51 C.4th 95.) Under Ross, Belton, and the other cases discussed above, there is no legal basis to hold that the scope of a permissible warrantless search of items immediately associated with the arrestee's person depends on the character of those items. (51 C.4th 96.)

(e) Storage capacity. The validity of the search of the cell phone does not turn on the capacity of defendant's phone, or cell phones in general, to store large amount of personal information. Even small containers holding less information than cell phones may contain highly personal, intimate, and private information. Regardless of the quantity of information involved, a lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have in property immediately associated with the person at the time of the arrest. Even if some cell phones can store an amount of personal information that "dwarfs that which can be carried in a spatial container," this does not explain why all cell phones, including those with a limited storage capacity, should be exempt from the rule of Robinson, Edwards, and Chadwick. (51 C.4th 96.) Moreover, the quantitative approach would create difficult line-drawing problems. How would a court determine whether an item's storage capacity is constitutionally significant? And how would a police officer determine this question while making an arrest? Similar concerns led Robinson to adopt the "straightforward" and "easily applied" rule that a full warrantless search of the person is constitutionally permissible. (51 C.4th 97, 98.)

(f) Content of cell phone. Under Robinson, Edwards, and Belton, there is no legal basis for distinguishing the contents of an item found on an arrestee's person from the item itself or the arrestee's person. All of these are subject to search incident to arrest. Police are entitled not only to seize anything thing find on the arrestee's person, but to open and examine what they find. Thus, under these precedents there is no basis to distinguish between the cell phone and its content. (51 C.4th 98.)

(g) Cell phone as container. Whether the search here was valid does not depend on whether or not a cell phone is a "container." The rule of Robinson, Edwards, and Chadwick is not limited to clothing and small personal containers. These cases apply more broadly to personal property, i.e. belongings or effects. The language of those decisions is consistent with one of the justifications for a search incident to arrest, the reasonableness of searching for evidence of a crime when a person is taken into custody and detained. Whether a cell phone is a container bears no relation to this justification. (51 C.4th 99.)

(h) Delayed search. The justification for a delayed search of property taken from the person of an arrestee in Edwards is that there is little difference between a conducting a search at the place of arrest or conducting the search later at the place of detention. A search at the place of detention does not involve any greater imposition on the constitutionally protected privacy interest of the arrestee. The delayed warrantless search is justified by the arrestee's "reduced expectations of privacy caused by the arrest." This rationale fully applies to the delayed search of defendant's cell phone. (51 C.4th 100.)

Two dissenting justices did not find "electronic communication and data storage devices carried on the person" sufficiently analogous to the cigarette package in Robinson or the clothing in Edwards to justify a blanket exception to the Fourth Amendment warrant requirement, and would instead treat the search of information stored on an arrestee's cell phone or similar device as a search of an item within the arrestee's immediate control, rather than as a search of the person. Under Chadwick, once the cell phone was securely in police custody, the arrest would no longer serve to authorize the warrantless search of the phone's stored data. (51 C.4th 104, 111.)

Witkin References

On search incident to arrest generally, see 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §143 et seq.

On search of person or effects incident to lawful arrest generally, see 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §146 et seq.

On authority to search based on lawful arrest, see 4 Cal Crim. Law (3d), Illegally Obtained Evidence, §147.

On applicability of federal test to search of person or effects incident to arrest after Proposition 8, see 4 Cal. Crim. Law (3d), Illegally Obtained Evidence, §149, 1 Cal. Evidence (4th), Introduction, §8, 9.