SB 914, a FAC-sponsored bill to prohibit warrantless searches of cell phones during an arrest, has been approved by the California Legislature. The legislation now goes to the Governor’s office, where, because of opposition by law enforcement, its fate is uncertain.
The Senate yesterday approved the bill, which was introduced by Senator Mark Leno (D-San Francisco), by a bipartisan 31-4 vote. It was approved by the Assembly in August.
Police ordinarily have authority, following an arrest, to conduct a search–without a warrant–of the person arrested and materials and containers in his possession–for example, a wallet, any weapons, or a cigarette pack. SB 914 alters this rule for “portable electronic devices” because of the volume and sensitivity of personal files and information that is typically stored on them.
Under SB 914, police could still search cellphones and similar devices, but only after obtaining a warrant. The legislation would reverse the outcome of a California Supreme Court decision, People v. Diaz, issued earlier this year. -PS
Here is the full text of SB 914:
SECTION 1. The Legislature finds and declares all of the
following:
(a) The right of privacy is fundamental in a free and civilized
society.
(b) The number of Californians utilizing and carrying portable
electronic devices is growing at a rapidly increasing rate. These
devices are capable of and encourage the storing of an almost
limitless amount of personal and private information. Commonly linked
to the Internet, these devices are used to access personal and
business information and databases that reside in computers and
servers located anywhere in the world. Users of portable electronic
devices have a reasonable and justifiable expectation of privacy in
the information these devices contain and can access through the
Internet.
(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.
(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’s
arrested person’s portable electronic device,
such as a cellular telephone.
(e) It is the intent of the Legislature in enacting Section 1542.5
of the Penal Code to reject as a matter of California statutory law
the rule under the Fourth Amendment to the United States Constitution
announced by the California Supreme Court in People v. Diaz. The
Legislature finds that once in the exclusive control of the police,
cellular telephones do not ordinarily pose a threat to officer
safety. The Legislature declares that concerns about destruction of
evidence on a cellular telephone can ordinarily be addressed through
simple evidence preservation methods and prompt application to a
magistrate for a search warrant and, therefore, do not justify a
blanket exception to the warrant requirement. Moreover, good forensic
evidence practice supports the use of search warrants to obtain
information contained in a cellular telephone seized incident to
arrest. Except as otherwise stated in this section, it is not the
intent of the Legislature to curtail law enforcement reliance on
standard established exceptions to the
warrant requirement.
(f) It is the intent of the Legislature, through the enactment of
Section 1542.5 of the Penal Code, to implement the provisions of
Sections 1 and 13 of Article 1 of the California Constitution.
SEC. 2. Section 1542.5 is added to the Penal Code, to read:
1542.5. (a) The information contained in a portable electronic
device shall not be subject to search by a law enforcement officer
incident to a lawful custodial arrest except pursuant to a warrant
issued by a duly authorized magistrate using the procedures
established by this chapter.
(b) As used in this section, “portable electronic device” means
any portable device that is capable of creating, receiving,
accessing, or storing electronic data or communications.
(c) Except as provided in subdivision (a), nothing in this section
curtails law enforcement reliance on established exceptions to the
warrant requirement.
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