Supreme Court of California Justia
Citation 51 Cal. 4th 84, 244 P.3d 501, 119 Cal. Rptr. 3d 105

People v. Diaz

Filed 1/3/11

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S166600
v.
Ct.App. 2/6 B203034
GREGORY DIAZ,
Ventura County
Defendant and Appellant.
Super. Ct. No. 2007015733

We granted review in this case to decide whether the Fourth Amendment to
the United States Constitution permits law enforcement officers, approximately 90
minutes after lawfully arresting a suspect and transporting him to a detention
facility, to conduct a warrantless search of the text message folder of a cell phone
they take from his person after the arrest. We hold that, under the United States
Supreme Court‟s binding precedent, such a search is valid as being incident to a
lawful custodial arrest. We affirm the Court of Appeal‟s judgment.
FACTUAL BACKGROUND

About 2:50 p.m. on April 25, 2007, Senior Deputy Sheriff Victor Fazio of
the Ventura County Sheriff‟s Department witnessed defendant Gregory Diaz
participating in a police informant‟s controlled purchase of Ecstasy. Defendant
drove the Ecstasy‟s seller to the location of the sale, which then took place in the
backseat of the car defendant was driving. Immediately after the sale, Fazio, who
had listened in on the transaction through a wireless transmitter the informant was


wearing, stopped the car defendant was driving and arrested defendant for being a
coconspirator in the sale of drugs. Six tabs of Ecstasy were seized in connection
with the arrest, and a small amount of marijuana was found in defendant‟s pocket.
Defendant had a cell phone on his person.
Fazio transported defendant to a sheriff‟s station, where a detective seized
the cell phone from defendant‟s person and gave it to Fazio. Fazio put it with the
other evidence and, at 4:18 p.m., interviewed defendant. Defendant denied having
knowledge of the drug transaction. After the interview, about 4:23 p.m., Fazio
looked at the cell phone‟s text message folder and discovered a message that said
“6 4 80.”1 Based on his training and experience, Fazio interpreted the message to
mean “[s]ix pills of Ecstasy for $80.” Within minutes of discovering the message
(and less than 30 minutes after the cell phone‟s discovery), Fazio showed the
message to defendant. Defendant then admitted participating in the sale of
Ecstasy.
Defendant was charged with selling a controlled substance (Health & Saf.
Code, § 11379, subd. (a)). He pleaded not guilty and moved to suppress the fruits
of the cell phone search — the text message and the statements he made when
confronted with it — arguing that the warrantless search of the cell phone violated
the Fourth Amendment. The trial court denied the motion, explaining: “The
defendant was under arrest for a felony charge involving the sale of drugs. His
property was seized from him. Evidence was seized from him. [¶] . . . [I]ncident
to the arrest[,] search of his person and everything that that turned up is really fair
game in terms of being evidence of a crime or instrumentality of a crime or
whatever the theory might be. And under these circumstances I don‟t believe
there‟s authority that a warrant was required.” Defendant then withdrew his not
1
Fazio had to manipulate the phone and go to several different screens to
access the text message folder. He did not recall whether the cell phone was on
when he picked it up to look through it.
2
guilty plea and pleaded guilty to transportation of a controlled substance. The trial
court accepted the plea, suspended imposition of sentence, and placed defendant
on probation for three years.
The Court of Appeal affirmed, finding that under governing high court
precedent, because the cell phone “was immediately associated with [defendant‟s]
person at the time of his arrest,” it was “properly subjected to a delayed
warrantless search.” We granted defendant‟s petition for review.
DISCUSSION
The Fourth Amendment provides that “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue, but upon probable
cause, supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” Under this provision, as the
United States Supreme Court has construed it, warrantless searches — i.e.,
“searches conducted outside the judicial process, without prior approval by judge
or magistrate” — “are per se unreasonable . . . subject only to a few specifically
established and well-delineated exceptions.” (Katz v. United States (1967) 389
U.S. 347, 357, fns. omitted.)
One of the specifically established exceptions to the Fourth Amendment‟s
warrant requirement is “a search incident to lawful arrest.” (United States v.
Robinson (1973) 414 U.S. 218, 224 (Robinson).) This exception “has traditionally
been justified by the reasonableness of searching for weapons, instruments of
escape, and evidence of crime when a person is taken into official custody and
lawfully detained. [Citation.]” (United States v. Edwards (1974) 415 U.S. 800,
802-803 (Edwards).) As the high court has explained: “When a custodial arrest is
made, there is always some danger that the person arrested may seek to use a
weapon, or that evidence may be concealed or destroyed. To safeguard himself
and others, and to prevent the loss of evidence, it has been held reasonable for the
arresting officer to conduct a prompt, warrantless „search of the arrestee‟s person
3
and the area “within his immediate control” . . . .‟ [Citations.] [¶] Such searches
may be conducted without a warrant, and they may also be made whether or not
there is probable cause to believe that the person arrested may have a weapon or is
about to destroy evidence. The potential dangers lurking in all custodial arrests
make warrantless searches of items within the „immediate control‟ area reasonable
without requiring the arresting officer to calculate the probability that weapons or
destructible evidence may be involved. [Citations.]” (United States v. Chadwick
(1977) 433 U.S. 1, 14-15 (Chadwick).)2
The People argue that the warrantless search in this case of the cell phone‟s
text message folder was valid as a search incident to defendant‟s lawful arrest.3
Defendant disagrees, arguing that the search “was too remote in time” to qualify as
a valid search incident to his arrest.4 In making this argument, he emphasizes that
the phone “was exclusively held in police custody well before the search of its text
message folder.”
Resolution of this issue depends principally on the high court‟s decisions in
Robinson, Edwards, and Chadwick. In Robinson, a police officer arrested the
defendant for driving with a revoked operator‟s permit. (Robinson, supra, 414
U.S. at p. 220.) The officer conducted a patdown search and felt an object he
could not identify in the breast pocket of the defendant‟s coat. He removed the
2
The area within an arrestee‟s immediate control is “ „the area from within
which [the arrestee] might gain possession of a weapon or destructible evidence.‟
[Citations.]” (Chadwick, supra, 433 U.S. at p. 14.)
3
The People do not contest that defendant had a protected expectation of
privacy in the contents of his text message folder. For purposes of this opinion,
we therefore assume defendant had such an expectation, and do not consider the
issue.
4
Defendant does not question the legality of either his arrest or his phone‟s
warrantless seizure. He challenges only the validity of the warrantless search of
the phone‟s text message folder.
4
object, which turned out to be a crumpled up cigarette package. He felt the
package and determined it contained objects that were not cigarettes. He then
opened the package and found 14 heroin capsules. (Id. at pp. 222-223.) The high
court held that the warrantless search of the package was valid under the Fourth
Amendment. (Robinson, supra, at p. 224.) It explained that, incident to a lawful
custodial arrest, police have authority to conduct “a full search of the [arrestee‟s]
person.” (Id. at p. 235.) This authority, the court continued, exists whether or not
the police have reason to believe the arrestee has on his or her person either
evidence or weapons. “A custodial arrest of a suspect based on probable cause is a
reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a
search [of the person] incident to the arrest requires no additional justification. It
is the fact of the lawful arrest which establishes the authority to search, and . . . in
the case of a lawful custodial arrest a full search of the person is not only an
exception to the warrant requirement of the Fourth Amendment, but is also a
„reasonable‟ search under that Amendment.” (Ibid.) Applying these principles,
the court held: “The search of [the defendant‟s] person . . . and the seizure from
him of the heroin, were permissible under established Fourth Amendment law. . . .
Having in the course of a lawful search come upon the crumpled package of
cigarettes, [the officer] was entitled to inspect it; and when his inspection revealed
the heroin capsules, he was entitled to seize them as „fruits, instrumentalities, or
contraband‟ probative of criminal conduct. [Citations.]” (Id. at p. 236, fns.
omitted.)
In Edwards, after lawfully arresting the defendant late one night for
attempting to break into a post office, police took him to jail and placed him in a
cell. (Edwards, supra, 415 U.S. at p. 801.) Ten hours later, suspecting that his
clothes might contain paint chips from the window through which he had tried to
enter, police made the defendant change into new clothes and held his old ones as
evidence. (Id. at p. 802; see also id. at p. 810 (dis. opn. of Stewart, J.).)
Subsequent examination of the old clothes revealed paint chips matching samples
5
taken from the window. (Id. at p. 802.) The high court held that both the
warrantless seizure of the clothes and the warrantless search of them for paint
chips were valid as a search incident to lawful arrest. (Id. at pp. 802-809.) It
expressly rejected the argument that, because the search occurred “after the
administrative mechanics of arrest ha[d] been completed and the prisoner [was]
incarcerated,” the search of the clothes was too remote in time to qualify as a
search incident to arrest. (Id. at p. 804.) The court explained: “[O]nce the
accused is lawfully arrested and is in custody, the effects in his possession at the
place of detention that were subject to search at the time and place of his arrest
may lawfully be searched and seized without a warrant even though a substantial
period of time has elapsed between the arrest and subsequent administrative
processing, on the one hand, and the taking of the property for use as evidence, on
the other. This is true where the clothing or effects are immediately seized upon
arrival at the jail, held under the defendant‟s name in the „property room‟ of the
jail, and at a later time searched and taken for use at the subsequent criminal trial.
The result is the same where the property is not physically taken from the
defendant until sometime after his incarceration.” (Id. at pp. 807-808, fns.
omitted, italics added.)
In Chadwick, supra, 433 U.S. 1, the high court cut back on the seemingly
broad rule Edwards had announced. In Chadwick, federal narcotics agents
observed the defendants load a 200-pound, double-locked footlocker into the trunk
of a car. Having probable cause to believe the footlocker contained illegal
contraband, the agents arrested the defendants and transported them to a federal
building, along with the car and the footlocker. There, 90 minutes after the arrest
and without obtaining a warrant or consent, the agents opened the footlocker and
found marijuana inside. (Chadwick, supra, at pp. 4-5.) The high court rejected
the argument that the warrantless search was valid as a search incident to arrest. It
first reaffirmed the principle that, because of “[t]he potential dangers lurking in all
custodial arrests,” police may conduct a warrantless search incident to arrest
6
“whether or not there is probable cause to believe that the person arrested may
have a weapon or is about to destroy evidence.” (Id. at p. 14.) “However,” the
court explained, “warrantless searches of luggage or other property seized at the
time of an arrest cannot be justified as incident to that arrest either if the „search is
remote in time or place from the arrest,‟ [citation], or no exigency exists. Once
law enforcement officers have reduced luggage or other personal property not
immediately associated with the person of the arrestee to their exclusive control,
and there is no longer any danger that the arrestee might gain access to the
property to seize a weapon or destroy evidence, a search of that property is no
longer an incident of the arrest.” (Id. at p. 15, italics added.) Under this principle,
the court held, because “the search was conducted more than an hour after federal
agents had gained exclusive control of the footlocker and long after [the
defendants] were securely in custody,” it could not “be viewed as incidental to the
arrest or as justified by any other exigency.” (Ibid.) In reaching this conclusion,
the court did not overrule Robinson or Edwards, but distinguished them as
involving warrantless searches “of the person” rather than searches “of
possessions within an arrestee‟s immediate control.” (Chadwick, at p. 16, fn. 10.)
The former searches, the court explained, are “justified by” the “reduced
expectations of privacy caused by the arrest”; the latter are not. (Ibid.) Thus, the
defendants‟ “privacy interest in the contents of the footlocker was not eliminated
simply because they were under arrest.” (Ibid.)
Under these decisions, the key question in this case is whether defendant‟s
cell phone was “personal property . . . immediately associated with [his] person”
(Chadwick, supra, 433 U.S. at p. 15) like the cigarette package in Robinson and
the clothes in Edwards. If it was, then the delayed warrantless search was a valid
search incident to defendant‟s lawful custodial arrest. If it was not, then the
search, because it was “ „remote in time [and] place from the arrest,‟ ” “cannot be
7
justified as incident to that arrest” unless an “exigency exist[ed].”5 (Chadwick,
supra, at p. 15.)
We hold that the cell phone was “immediately associated with
[defendant‟s] person” (Chadwick, supra, 433 U.S. at p. 15), and that the
warrantless search of the cell phone therefore was valid. As the People explain,
the cell phone “was an item [of personal property] on [defendant‟s] person at the
time of his arrest and during the administrative processing at the police station.”
In this regard, it was like the clothing taken from the defendant in Edwards and the
cigarette package taken from the defendant‟s coat pocket in Robinson, and it was
unlike the footlocker in Chadwick, which was separate from the defendants‟
persons and was merely within the “area” of their “ „immediate control.‟ ”
(Chadwick, supra, 433 U.S. at p. 15.) Because the cell phone was immediately
associated with defendant‟s person, Fazio was “entitled to inspect” its contents
without a warrant (Robinson, supra, 414 U.S. at p. 236) at the sheriff‟s station 90
minutes after defendant‟s arrest, whether or not an exigency existed.6
5
The approximately 90-minute delay between defendant‟s arrest and the
search of his cell phone was substantially similar to the 90-minute delay the high
court held to be too remote in Chadwick.
6
Given our conclusion, we need not address the People‟s argument that an
exigency existed because a cell phone‟s contents “are dynamic in nature and
subject to change without warning — by the replacement of old data with new
incoming calls or messages; by a mistaken push of a button; by the loss of power;
by a person contacting the cellular phone provider; or by a person pre-selecting the
„cleanup‟ function on the cellular phone, which limits the length of time messages
are stored before they are automatically deleted.” We note, however, that the
People have offered no evidence to support this claim. Nor have they offered
evidence as to whether text messages deleted from a cell phone may be obtained
from the cell phone‟s provider. (See Orso, Cellular Phones, Warrantless
Searches, and the New Frontier of Fourth Amendment Jurisprudence
(2010) 50
Santa Clara L.Rev. 183, 199 [“text messages are feasibly accessible for about two
weeks from the cellular provider”].)
8

In arguing otherwise, defendant first asserts that, in deciding whether his
cell phone is “the equivalent of” the cigarette package in Robinson or the
footlocker in Chadwick, we should focus on its “character,” not on the mere fact
he was carrying it on his person. As defendant interprets the high court cases, a
warrant is necessary for a delayed search unless the seized item is “clothing, or an
article or container typically kept on or inside of clothing, or otherwise by its very
nature carried on the arrestee‟s person.” For two reasons, defendant argues, cell
phones do not meet these criteria. First, they “are not necessarily or routinely[]
worn, carried in a pocket, or attached to a person or his clothes,” but are “more
often kept near [their] owner[s], within [their] reach . . . inside a briefcase,
backpack, or purse, or on a car seat or table, or plugged into a power source, or
stashed inside any manner of separate bags or carrying containers.” Second, cell
phones “contain[] quantities of personal data unrivaled by any conventional item
of evidence traditionally considered to be „immediately associated with the person
of the arrestee,‟ such as an article of clothing, a wallet, or a crumpled cigarette box
found in an arrestee‟s pocket,” and therefore implicate heightened “privacy
concerns” that warrant treating them “like . . . the footlocker in Chadwick.”7 The
dissent endorses defendant‟s latter point, asserting that all cell phones should be
exempt from the rule of Robinson, Edwards, and Chadwick, because the amount
of personal information cell phones can store “dwarfs that which can be carried on
the person in a spatial container.” (Dis. opn. of Werdegar, J., post, at p. 8.)
The relevant high court decisions do not support the view that whether
police must get a warrant before searching an item they have properly seized from
an arrestee’s person incident to a lawful custodial arrest depends on the item‟s
7
Defendant‟s argument implicitly recognizes that courts commonly hold that
delayed warrantless searches of wallets found on arrestees‟ persons are valid
searches incident to arrest. (See, e.g., United States v. Passaro (9th Cir. 1980) 624
F.2d 938, 943-944.)
9
character, including its capacity for storing personal information. As noted above,
Chadwick explains that a delayed warrantless search “of the person” (Chadwick,
supra, 433 U.S. at p. 16, fn. 10) — which includes property “immediately
associated with the person” at the time of arrest (id. at p. 15), but excludes
property that is only “within an arrestee‟s immediate control” (id. at p. 16, fn.
10) — is valid because of “reduced expectations of privacy caused by the arrest.”
(Ibid.) Robinson states that if a custodial arrest is lawful, then a “full” search of
the arrestee‟s person “requires no additional justification.” (Robinson, supra, 414
U.S. at p. 235.) Edwards states that “once the accused is lawfully arrested and is
in custody, the effects in his possession at the place of detention that were subject
to search at the time and place of his arrest may lawfully be searched and seized
without a warrant even though a substantial period of time has elapsed between
the arrest and subsequent administrative processing, on the one hand, and the
taking of the property for use as evidence, on the other.” (Edwards, supra, 415
U.S. at p. 807.) Nothing in these decisions even hints that whether a warrant is
necessary for a search of an item properly seized from an arrestee‟s person
incident to a lawful custodial arrest depends in any way on the character of the
seized item.
Moreover, in analogous contexts, the high court has expressly rejected the
view that the validity of a warrantless search depends on the character of the
searched item. In United States v. Ross (1982) 456 U.S. 798, 825 (Ross), the court
held that police who have probable cause to believe a lawfully stopped car
contains contraband may conduct a warrantless search of any compartment or
container in the car that may conceal the object of the search. As relevant here,
the court stated that whether a particular container may be searched without a
warrant does not depend on the character of the container, explaining: “[A]
constitutional distinction between „worthy‟ and „unworthy‟ containers would be
improper. Even though such a distinction perhaps could evolve in a series of cases
in which paper bags, locked trunks, lunch buckets, and orange crates were placed
10
on one side of the line or the other, the central purpose of the Fourth Amendment
forecloses such a distinction.” (Id. at p. 822, fn. omitted.) “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.”8 (Ross, at p. 824.) In New York v.
Belton (1981) 453 U.S. 454 (Belton), the court held that police making a lawful
custodial arrest of a car‟s occupant “may, as a contemporaneous incident of that
arrest,” “examine the contents of any containers found within the passenger
compartment.” (Id. at p. 460, italics added.) As relevant here, the court rejected
the proposition that whether a particular container may be searched without a
warrant depends on the extent of the arrestee‟s reasonable expectation of privacy
in that container, explaining: “[A]ny container[] . . . [in] the passenger
compartment . . . may . . . be searched whether it is open or closed, since the
justification for the search is not that the arrestee has no privacy interest in the
container, but that the lawful custodial arrest justifies the infringement of any
privacy interest the arrestee may have.”9 (Belton, at pp. 460-461, italics added.)
8
In reaching this conclusion, the high court in Ross rejected the view of
several lower court judges who had concluded that, based on differing
expectations of privacy, the warrantless search of a brown paper bag in Ross‟s
stopped car was valid, but the warrantless search of a zippered leather pouch was
not. (Ross, supra, 456 U.S. at p. 802.)
9
In Arizona v. Gant (2009) __ U.S. __ [129 S.Ct. 1710, 1714], the high court
limited Belton, supra, 453 U.S. 454, by holding that police may not search
containers in a vehicle‟s passenger compartment “incident to a recent occupant‟s
arrest after the arrestee has been secured and cannot access the interior of the
vehicle,” unless “it is reasonable to believe that evidence of the offense of arrest
might be found in the vehicle.” At the same time, the court reaffirmed Belton‟s
holding that whether a particular container may be searched does not depend on its
character or the extent of the arrestee‟s expectation of privacy in it. (Gant, 129
S.Ct. at p. 1720 [in permissible warrantless search, police may search “every
purse, briefcase, or other container within” the car‟s passenger compartment].)
Gant is not otherwise relevant here, as it involved a search of the area within an
arrestee‟s immediate control, not of the arrestee‟s person. (Id. at p. 1714.)
11
Under Ross, Belton, and the other high court decisions discussed above, there is no
legal basis for holding that the scope of a permissible warrantless search of an
arrestee‟s person, including items immediately associated with the arrestee‟s
person, depends on the nature or character of those items.
Regarding the particular focus of defendant and the dissent on the alleged
storage capacity of cell phones, for several reasons, the argument is unpersuasive.
First, the record contains no evidence regarding the storage capacity of cell phones
in general or of defendant‟s cell phone in particular. Second, neither defendant
nor the dissent persuasively explains why the sheer quantity of personal
information should be determinative. Even “small spatial container[s]” (dis. opn.
of Werdegar, J., post, at p. 3) that hold less information than cell phones may
contain highly personal, intimate and private information, such as photographs,
letters, or diaries.10 If, as the high court held in Ross, “a traveler who carries a
toothbrush and a few articles of clothing in a paper bag or knotted scarf [has] an
equal right to conceal his possessions from official inspection as the sophisticated
executive with the locked attaché case” (Ross, supra, 456 U.S. at p. 822), then
travelers who carry sophisticated cell phones have no greater right to conceal
personal information from official inspection than travelers who carry such
10
The dissent does not question that police may examine personal
photographs found upon an arrestee‟s person, but objects that the high court has
not held that police may read the contents of a letter or diary seized from an
arrestee‟s person. (Dis. opn. of Werdegar, J., post, at p. 8, fn. 7.) However,
several of the court of appeals decisions the high court in Edwards cited with
approval on the issue of delayed searches (Edwards, supra, 415 U.S. at pp. 803-
804, fn. 4) upheld the warrantless examination, incident to arrest, of diaries or
personal papers found upon the arrestee‟s person. (See United States v. Gonzalez-
Perez
(5th Cir. 1970) 426 F.2d 1283, 1285-1287 [papers contained in pockets,
wallets, and purse]; United States v. Frankenberry (2d Cir. 1967) 387 F.2d 337,
339 [diary]; Cotton v. United States (9th Cir. 1967) 371 F.2d 385, 392 [papers
contained in pockets]; Grillo v. United States (1st. Cir. 1964) 336 F.2d 211, 213
[paper contained in wallet].)
12
information in “small spatial container[s].”11 (Dis. opn. of Werdegar, J., post, at
p. 3) And if, as the high court held in Belton, differing expectations of privacy
based on whether a container is open or closed are irrelevant to the validity of a
warrantless search incident to arrest (Belton, supra, 453 U.S. at p. 461), then
differing expectations of privacy based on the amount of information a particular
item contains should also be irrelevant. Regarding the quantitative analysis of
defendant and the dissent, the salient point of the high court‟s decisions is that a
“lawful custodial arrest justifies the infringement of any privacy interest the
arrestee may have” in property immediately associated with his or her person at
the time of arrest (ibid., italics added), even if there is no reason to believe the
property contains weapons or evidence (Robinson, supra, 414 U.S. at p. 235).
Third, even were it true that the amount of personal information some cell phones
can store “dwarfs that which can be carried on the person in a spatial container”
(dis. opn. of Werdegar, J., post, at p. 8) — and, again, the record contains no
evidence on this question — defendant and the dissent fail to explain why this
circumstance would justify exempting all cell phones, including those with limited
storage capacity, from the rule of Robinson, Edwards, and Chadwick.12 A
warrantless search, incident to a lawful arrest, of a cell phone with limited storage

11
Were the rule otherwise, those carrying small spatial containers, which are
legally subject to seizure and search if found upon the person at the time of arrest,
would find little solace in discovering that their intimate secrets would have been
protected if only they had used a device that could hold more personal
information.
12
According to the United States Department of Justice, drug traffickers
commonly use disposable cell phones, because they are relatively inexpensive and
difficult to trace. (Nat. Drug Intelligence Center, U.S. Dept. J., Midwest High
Intensity Drug Trafficking Area Drug Market Analysis 2009 (Mar. 2009)
<http://www.justice.gov/ndic/pubs32/32775/distro.htm> [as of Jan. 3, 2011].)
Such phones have limited storage capacity. (Ferro, Cell phones: disposable
mobile phone finally hits the US
(May 31, 2008) TECH.BLORGE Technology
News <http://tech.blorge.com/Structure:%20/2008/05/31/cell-phones-disposable-
mobile-phones-finally-hits-the-us/> [as of Jan. 3, 2011].)
13


capacity does not become constitutionally unreasonable simply because other cell
phones may have a significantly greater storage capacity.
Finally, adopting the quantitative approach of defendant and the dissent
would create difficult line-drawing problems for both courts and police officers in
the field. How would a court faced with a similar argument as to another type of
item determine whether the item‟s storage capacity is constitutionally significant?
And how would an officer in the field determine this question upon arresting a
suspect? Defendant and the dissent offer no guidance on these questions. Their
approach would be “inherently subjective and highly fact specific, and would
require precisely the sort of ad hoc determinations on the part of officers in the
field and reviewing courts” that the high court has condemned. (Thornton v. U.S.
(2004) 541 U.S. 615, 623; see also Belton, supra, 453 U.S. at pp. 458-459.)
Similar concerns led the high court in Robinson to adopt the “straightforward,”
“easily applied, and predictably enforced” rule that “ „a full [warrantless] search of
the person‟ ” is constitutionally permissible, and to “reject[] the suggestion that
„there must be litigated in each case the issue of whether or not there was present
one of the reasons supporting the authority for a search of the person incident to a
lawful arrest.‟ [Citation.]” (Belton, supra, 453 U.S. at p. 459, quoting Robinson,
supra, 414 U.S. at p. 235.) Adopting the quantitative approach of defendant and
the dissent, under which the validity of a warrantless search would turn on the
amount of personal information a particular item might contain, would be contrary
to these high court precedents. (See U.S. v. Murphy (4th Cir. 2009) 552 F.3d 405,
411 [in upholding warrantless search incident to arrest, refusing to distinguish cell
phones based on their “large” storage capacity because of difficulty quantifying
that term “in any meaningful way”].)
Defendant next argues that, in determining whether a warrant was
necessary, we should distinguish between the cell phone itself and its contents.
According to defendant, “[t]here is little about a cell phone‟s content that is
conceptually linked to or inextricably associated with the physical body or the
14
inherent attributes of the arrestee‟s person. A cell phone‟s data content is not at all
like a pair of pants or even a piece of paper folded up inside a wallet that has been
tucked inside the pocket of a pair of pants.” It “cannot be worn or „carried‟ on
one‟s person.” “[T]he nature of the evidence that a cell phone may contain, and
the fact that the cell phone „container‟ is readily differentiated from the cell phone
„content,‟ warrants treating the cell phone content differently from the seized cell
phone itself.” The dissent makes a similar argument, distinguishing between “the
arrestee‟s actual person” and the cell phone‟s content — i.e., the stored data —
and arguing that the loss of “bodily privacy” that justifies a warrantless “search of
an arrestee‟s person” upon arrest does not also justify the search of a cell phone
found upon the arrestee‟s person. (Dis. opn. of Werdegar, J., post, at pp. 10-11.)
These arguments are inconsistent with the high court‟s decisions. Those
decisions hold that the loss of privacy upon arrest extends beyond the arrestee‟s
body to include “personal property . . . immediately associated with the person of
the arrestee” at the time of arrest. (Chadwick, supra, 433 U.S. at p. 15.) They also
hold, contrary to the dissent‟s suggestion, that this loss of privacy entitles police
not only to “seize” anything of importance they find on the arrestee‟s body (dis.
opn. of Werdegar, J., post, at p. 10.), but also to open and examine what they find.
Thus, the court in Robinson held that a police officer, despite seizing a cigarette
package from the defendant‟s shirt pocket and reducing it to police control, did not
need to obtain a warrant before opening the package and examining its contents.
(Robinson, supra, 414 U.S. at p. 236.) Similarly, the court in Edwards held that
the police, despite seizing the defendant‟s clothes and reducing them to police
control, did not need to obtain a warrant before subjecting those clothes to
laboratory testing. (Edwards, supra, 415 U.S. at pp. 802-809.) In both cases, the
high court expressly refused to distinguish the contents of the seized item from
either the seized item itself or “the arrestee‟s actual person.” (Dis. opn. of
Werdegar, post, at p. 11.) As the court later explained in Belton in refusing to
draw a constitutional distinction between the seizure of an item and a search of
15
that item: “[U]nder this fallacious theory, no search or seizure incident to a lawful
custodial arrest would ever be valid; by seizing an article even on the arrestee‟s
person, an officer may be said to have reduced that article to his [or her] „exclusive
control.‟ ” (Belton, supra, 453 U.S. at pp. 461-462, fn. 5.) Under these high court
decisions, in determining the validity of a search incident to arrest, there is no
legal basis for distinguishing the contents of an item found upon an arrestee‟s
person from either the seized item itself or “the arrestee‟s actual person.”13 (Dis.
opn. of Werdegar, J., post, at p. 11.)
The dissent makes several arguments in addition to defendant‟s, but they
are also unpersuasive. Although conceding that Robinson, Edwards, and
Chadwick, “reasonably read,” authorize delayed warrantless searches “of
containers” immediately associated with an arrestee‟s person, the dissent asserts
that cell phones are exempt from this rule because they are not “ „containers‟
within the meaning of the high court‟s search decisions.” (Dis. opn. of Werdegar,
J., post, at pp. 8-9.) However, application of the rule of Robinson, Edwards, and
Chadwick turns not on whether the item in question constitutes a “container,” but
13
Defendant insists that Edwards is “limited by its facts to the delayed search
of an article of clothing.” However, the court‟s discussion more broadly addressed
“other belongings” (Edwards, supra, 415 U.S. at p. 804) and “effects in [the
arrestee‟s] possession” (id. at p. 807). We do not consider ourselves free to
disregard this discussion, especially in light of Robinson, which did not involve
clothing, and Chadwick, which reaffirmed the validity of delayed warrantless
searches of “personal property . . . immediately associated with the person of the
arrestee.” (Chadwick, supra, 433 U.S. at p. 15.) Defendant alternatively suggests
that Edwards validates delayed warrantless searches only of “ „effects still in the
defendant‟s possession at the place of detention, such as the defendant‟s
clothing.‟ ” Again, the high court‟s opinion is not so limited; the court stated that
a delayed warrantless search is valid “where the clothing or effects are
immediately seized upon arrival at the jail, held under the defendant‟s name in the
„property room‟ of the jail, and at a later time searched and taken for use at the
subsequent criminal trial.” (Edwards, supra, at p. 807.)
16
on whether it is “property,” i.e., a “belonging[]” or an “effect[].”14 (Edwards,
supra, 415 U.S. at pp. 803-804, 807-808; see also Chadwick, supra, 433 U.S. at p.
15; Robinson, supra, 414 U.S. at pp. 229, 232.) The dissent‟s attempt to limit the
reach of that rule to “clothing and small spatial containers” (dis. opn. of Werdegar,
J., post, at p. 9) finds no support in the language of the high court‟s governing
decisions. In this respect, the language of those decisions is entirely consistent
with the Fourth Amendment itself, which protects “[t]he right of the people to be
secure in their persons, houses, papers, and effects.” (Italics added.) It is also
consistent with one of the justifications for the search incident to arrest exception:
“the reasonableness of searching for . . . evidence of crime when a person is taken
into official custody and lawfully detained. [Citation.]” (Edwards, supra, 415
U.S. at pp. 802-803, italics added.) Contrary to the dissent‟s analysis, whether an
item of personal property constitutes a “container” bears no relation to this
justification.15
The dissent also errs in asserting that the high court‟s “rationale” for
allowing delayed warrantless searches incident to arrest is of “doubtful”
applicability to “items that are easily removed from the arrestee‟s possession and
secured by the police.” (Dis. opn. of Werdegar, J., post, at p. 6.) In Edwards, the

14
The word “container” does not appear in Robinson and Edwards. It
appears once in Chadwick, in a footnote where the high court explained that the
defendant‟s principal privacy interest in the footlocker was “not in the container
itself . . . but in its contents.” (Chadwick, supra, 433 U.S. at pp. 13-14, fn. 8.)

15
The high court did discuss containers in the decisions we have cited as
involving “analogous contexts.” (Ante, at pp. 10-12.) In this respect, our analysis
is consistent with the weight of authority. (State v. Boyd (Conn. 2010) 992 A.2d
1071, 1089, fn. 17 [“A number of courts have analogized cell phones to closed
containers and concluded that a search of their contents is, therefore, valid under
the automobile exception or the exception for a search incident to arrest.”].)
Moreover, contrary to the dissent‟s analysis, nothing in these analogous decisions
purports to limit the rule of Robinson, Edwards, and Chadwick to property that
classifies as a container.
17


high court declared it “plain that searches and seizures that [may] be made on the
spot at the time of arrest may legally be conducted later when the accused arrives
at the place of detention.” (Edwards, supra, 415 U.S. at p. 803.) The rationale for
this rule, the court explained, is that the arrestee is “no more imposed upon” by a
delayed search “than he [or she] could have been” by a warrantless search “at the
time and place of the arrest . . . .” (Id. at p. 805.) There is “little difference,” the
court reasoned, between conducting the search at the place of arrest and
conducting it later at the place of detention. (Id. at p. 803.) This analysis is
consistent with the high court‟s earlier statement in Robinson that “[a] police
officer‟s determination as to how and where to search the person of a suspect
whom he has arrested is necessarily a quick ad hoc judgment which the Fourth
Amendment does not require to be broken down in each instance into an analysis
of each step in the search.” (Robinson, supra, 414 U.S. at p. 235, first italics
added.) It is also consistent with the high court‟s subsequent statement in
Chadwick that a delayed warrantless search of personal property immediately
associated with the person of an arrestee at the time of arrest is justified by the
“reduced expectations of privacy caused by the arrest.” (Chadwick, supra, 433
U.S. at p. 16, fn. 10.) Contrary to the dissent‟s assertion, the rationale of these
decisions — that a delayed search of an item of personal property found upon an
arrestee‟s person no more imposes upon the arrestee‟s constitutionally protected
privacy interest than does a search at the time and place of arrest — fully applies
to the delayed search of defendant‟s cell phone.16
16
Not satisfied with the high court‟s explicit explanations, the dissent, citing
just two of the 20 court of appeals decisions Edwards string-cited on the point (see
Edwards, supra, 415 U.S. at pp. 803-804, fn. 4), asserts that the high court‟s
“rationale is to avoid logistically awkward or embarrassing public searches.” (Dis.
opn. of Werdegar, J., post, at p. 6.) This assertion finds no support in the language
of the high court‟s decisions, no doubt because making the validity of a delayed
search turn on the logistics or potential embarrassment of a public search would,

(Footnote continued on next page.)
18



For the reasons discussed above, we hold that, under the United States
Supreme Court‟s binding precedent, the warrantless search of defendant‟s cell
phone was valid. If, as the dissent asserts, the wisdom of the high court‟s
decisions “must be newly evaluated” in light of modern technology (dis. opn. of
Werdegar, J., post, at p. 1), then that reevaluation must be undertaken by the high
court itself. 17
(Footnote continued from previous page.)

like the dissent‟s quantitative approach, require “the sort of ad hoc determinations
on the part of officers in the field and reviewing courts” that the high court has
condemned. (Thornton v. U.S., supra, 541 U.S. at p. 623.)

17
Only a few published decisions exist regarding the validity of a warrantless
search of a cell phone incident to a lawful custodial arrest. Most are in accord
with our conclusion. (See, e.g., United States v. Murphy, supra, 552 F.3d at p. 412
[citing Edwards in holding that “once [the defendant‟s] cell phone was held for
evidence, other officers and investigators were entitled to conduct a further review
of its contents . . . without seeking a warrant”]; United States v. Finley (5th Cir.
2007) 477 F.3d 250, 260, fn. 7 [arrestee‟s cell phone “does not fit into
[Chadwick‟s] category of „property not immediately associated with [his] person‟
because it was on his person at the time of his arrest”]; United States v. Wurie (D.
Mass. 2009) 612 F.Supp.2d 104, 110 [upholding delayed search of cell phone,
finding “no principled basis for distinguishing a warrantless search of a cell phone
from the search of other types of personal containers found on a defendant‟s
person that” have been upheld under Edwards].)
In a closely divided (four to three) opinion, the Supreme Court of Ohio held
otherwise, reasoning that “because a person has a high expectation of privacy in a
cell phone‟s contents,” police, after seizing a cell phone from an arrestee‟s person,
“must . . . obtain a warrant before intruding into the phone‟s contents.” (State v.
Smith
(Ohio 2009) 920 N.E.2d 949, 955.) The Ohio court‟s focus on the extent of
the arrestee‟s expectation of privacy is, as previously explained, inconsistent with
the high court‟s decisions.
19


DISPOSITION
The judgment of the Court of Appeal is affirmed.
CHIN, J.
WE CONCUR:

KENNARD, Acting C. J.
BAXTER, J.
CORRIGAN, J.
GEORGE, J.*

_____________________________
* Retired Chief Justice of California, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
20


CONCURRING OPINION BY KENNARD, ACTING C. J.

The majority holds that the police may, without obtaining a warrant, view
or listen to information electronically stored on a mobile phone that a suspect was
carrying when lawfully arrested. The dissent disagrees. I explain why I join the
majority rather than the dissent.
On June 8, 1982, California voters enacted an initiative measure known as
Proposition 8. Among other things, Proposition 8 added to the California
Constitution a “Right to Truth-in-Evidence” provision (Cal. Const., art. 1, § 28,
former subd. (d) [now subd. (f)(2)]). That provision generally prohibits exclusion
of relevant evidence in a criminal proceeding on the ground that the evidence was
obtained unlawfully. Because the federal Constitution is “the supreme law of the
land” (U.S. Const., art. VI, § 2), and thus prevails over conflicting state
constitutional provisions, the state Constitution‟s “Right to Truth-in-Evidence”
provision does not apply when relevant evidence must be excluded because it was
obtained in violation of the federal Constitution‟s Fourth Amendment, which
prohibits “unreasonable searches and seizures.” As a result, in California criminal
proceedings all issues related to the suppression of evidence derived from police
searches and seizures are now determined by application of federal constitutional
law. (People v. Lenart (2004) 32 Cal.4th 1107, 1118; People v. Sapp (2003) 31
Cal.4th 240, 267; People v. Bradford (1997) 15 Cal.4th 1229, 1291.) On issues of
federal constitutional law, the decisions of the United States Supreme Court are
1


controlling. (Gates v. Discovery Communications, Inc. (2004) 34 Cal.4th 679,
692.)
As the majority explains, three decisions of the United States Supreme
Court compel the result in this case. Those decisions are United States v.
Robinson (1973) 414 U.S. 218 (Robinson), United States v. Edwards (1974) 415
U.S. 800 (Edwards), and United States v. Chadwick (1977) 433 U.S. 1
(Chadwick). Under Robinson and Chadwick, a warrant is not required to conduct
a “full search of the person” incident to a lawful arrest (Robinson, at p. 235), and
the police may examine an object found during the search to determine whether it
contains evidence of crime (id. at p. 236), so long as the object is one that is
“immediately associated with the person of the arrestee” (Chadwick, at p. 15).
Under Edwards, this search and inspection need not occur at the time and place of
the arrest; it may occur even after “a substantial period of time has elapsed.”
(Edwards, at p. 807.)
When carried in clothing (rather than inside luggage or a similar container),
a mobile phone is personal property that is “immediately associated with the
person of the arrestee” (Chadwick, supra, 433 U.S. 1, 15). Accordingly, under
controlling high court decisions, police may, without obtaining a warrant, inspect a
mobile phone carried by a suspect at the time of arrest, by viewing or listening to
its electronically stored data, including text messages, even when a substantial
time has elapsed since the arrest.
The dissent asserts that in light of the vast data storage capacity of “smart
phones” and similar devices, the privacy interests that the federal Constitution‟s
Fourth Amendment was intended to protect would be better served by a rule that
did not allow police “to rummage at leisure through the wealth of personal and
business information that can be carried on a mobile phone or handheld computer
merely because the device was taken from an arrestee‟s person.” (Dis. opn., post,
2
at pp. 12-13.) The dissent also asserts that the three high court decisions I have
mentioned are not binding here because they “were not made with mobile phones,
smartphones and handheld computers — none of which existed at the time — in
mind.” (Dis. opn., post, at p. 9.) In my view, however, the recent emergence of
this new technology does not diminish or reduce in scope the binding force of high
court precedents.
I join the majority rather than the dissent because the United States
Supreme Court has cautioned that on issues of federal law all courts must follow
its directly applicable precedents, even when there are reasons to anticipate that it
might reconsider, or create an exception to, a rule of law that it has established.
(Rodriguez de Quijas v. Shearson/Am. Exp. (1989) 490 U.S. 477, 484.) The high
court has reserved to itself alone “the prerogative of overruling its own decisions.”
(Ibid.; see Scheiding v. General Motors Corp. (2000) 22 Cal.4th 471, 478.)
Under the compulsion of directly applicable United States Supreme Court
precedent, I join the majority in affirming the Court of Appeal‟s judgment.
KENNARD, ACTING C. J.
3


DISSENTING OPINION BY WERDEGAR, J.

I respectfully dissent. The majority concludes police may search the data
stored on an arrestee‟s mobile phone without a warrant, as they may search
clothing (see United States v. Edwards (1974) 415 U.S. 800 (Edwards)) or small
physical containers such as a crumpled cigarette package (see United States v.
Robinson (1973) 414 U.S. 218 (Robinson)) taken from the person of an arrestee.
In my view, electronic communication and data storage devices carried on the
person — cellular phones, smartphones and handheld computers — are not
sufficiently analogous to the clothing considered in Edwards or the crumpled
cigarette package in Robinson to justify a blanket exception to the Fourth
Amendment‟s warrant requirement. A particular context-dependent balancing of
constitutionally protected privacy interests against the police interests in safety and
preservation of evidence led the United States Supreme Court, over 30 years ago,
to hold searches of the arrestee‟s person reasonable despite the lack of probable
cause or a warrant and despite substantial delay between the arrest and the search.
(See United States v. Chadwick (1977) 433 U.S. 1, 14-15 (Chadwick).) Today, in
the very different context of mobile phones and related devices, that balance must
be newly evaluated.1
1
The separately concurring justice correctly observes that we must follow
directly applicable decisions from the United States Supreme Court even if we

(Footnote continued on next page.)


The potential intrusion on informational privacy involved in a police search
of a person‟s mobile phone, smartphone or handheld computer is unique among
searches of an arrestee‟s person and effects. A contemporary smartphone2 can
hold hundreds or thousands of messages, photographs, videos, maps, contacts,
financial records, memoranda and other documents, as well as records of the
user‟s telephone calls and Web browsing.3 Never before has it been possible to
(Footnote continued from previous page.)

think them due for reexamination. (Rodriguez de Quijas v. Shearson/Am. Exp.
(1989) 490 U.S. 477, 484.) But where high court precedent is not on all fours with
the case at bar, we also must remember that the language of Supreme Court
decisions is to “be read in the light of the facts of the case under discussion” and
that “[g]eneral expressions transposed to other facts are often misleading.”
(Armour & Co. v. Wantock (1944) 323 U.S. 126, 133.) Indeed, the Supreme Court
recently emphasized that stare decisis should not be used “to justify the
continuance of an unconstitutional police practice. . . . in a case that is so easily
distinguished from the decisions that arguably compel it.” (Arizona v. Gant
(2009) __ U.S. ___, ___ [173 L.Ed.2d 485, 499, 129 S.Ct. 1710, 1722].)

The facts of the present case, as I will explain, differ in important respects
from those that gave rise to the United States Supreme Court decisions in
Robinson, Edwards and Chadwick. These precedents, therefore, provide no basis
for evading this court‟s independent responsibility to determine the
constitutionality of the search at issue. While we of course have no authority to
overrule them, we may and should refrain from applying their language blindly to
new and fundamentally different factual circumstances.
2
PCMag.com‟s online encyclopedia defines a smartphone as “[a] cellular
telephone with built-in applications and Internet access. Smartphones provide
digital voice service as well as text messaging, e-mail, Web browsing, still and
video cameras, MP3 player and video and TV viewing. In addition to their built-
in functions, smartphones can run myriad applications, turning the once single-
minded cellphone into a mobile computer.”
(<http://www.pcmag.com/encyclopedia_term/0,2542,%20t=Smartphone&i=51537
,00.asp> [as of Jan. 3, 2011].)
3
Apple‟s iPhone 4, HTC‟s Droid Incredible, and the BlackBerry Torch all
can store up to 32 gigabytes of data, which could include thousands of images or
other digital files. (See <http://www.apple.com/iphone/specs.html>;

(Footnote continued on next page.)
2


carry so much personal or business information in one‟s pocket or purse. The
potential impairment to privacy if arrestees‟ mobile phones and handheld
computers are treated like clothing or cigarette packages, fully searchable without
probable cause or a warrant, is correspondingly great.
Although the record does not disclose the type of mobile phone defendant
possessed, I discuss smartphones as well as other mobile phones for two reasons.
First, the rule adopted by the majority — that an electronic device carried on the
person is for Fourth Amendment purposes indistinguishable from an individual‟s
clothing or a small spatial container — is broad enough to encompass all types of
handheld electronic data devices, including smartphones such as iPhones and
BlackBerry devices, as well as other types of handheld computers. While I
disagree with the majority‟s holding on the validity of the search here, I agree that
the permissibility of a search incident to arrest should not depend on the features
or technical specifications of the mobile device, which could be difficult to
determine at the time of arrest.4 Second, smartphones make up a growing share of
the United States mobile phone market and are likely to be pervasive in the near
future. (See Gershowitz, The iPhone Meets the Fourth Amendment, supra, 56

(Footnote continued from previous page.)

<http://www.htc.com/us/products/droid-incredible-verizon?view=1-
1&sort=0#tech-specs>; and
<http://us.blackberry.com/smartphones/blackberrytorch/#!phone-specifications>
[all as of Jan. 3, 2011].) On the capabilities of smartphones generally, see
Gershowitz, The iPhone Meets the Fourth Amendment (2008) 56 UCLA L.Rev.
27, 29-30.
4
But see Orso, Cellular Phones, Warrantless Searches, and the New
Frontier of Fourth Amendment Jurisprudence (2010) 50 Santa Clara L.Rev. 183,
222 (proposing to distinguish smartphones from “older generation cellular
phones” by presence of a touch screen or full keyboard, and to impose stricter
limits on searches of smartphones).
3


UCLA L.Rev. at p. 29 [“It does not take a crystal ball to predict that such devices
will be ubiquitous in the United States within a few years.”].)5 The question of
when and how they may be searched is therefore an important one.
Warrantless searches incident to arrest are justified by the important
interests in officer safety and preservation of evidence. “When a custodial arrest is
made, there is always some danger that the person arrested may seek to use a
weapon, or that evidence may be concealed or destroyed. To safeguard himself
and others, and to prevent the loss of evidence, it has been held reasonable for the
arresting officer to conduct a prompt, warrantless „search of the arrestee‟s person
and the area “within his immediate control”—construing that phrase to mean the
area from within which he might gain possession of a weapon or destructible
evidence.‟ ” (Chadwick, supra, 433 U.S. at p. 14, quoting Chimel v. California
(1969) 395 U.S. 752, 763.)
Weapons, of course, may be hidden in an arrestee‟s clothing or in a
physical container on the person. But there is apparently no “app” that will turn an
iPhone or any other mobile phone into an effective weapon for use against an
arresting officer (and if there were, officers would presumably seek to disarm the
phone rather than search its data files). Clearly, any justification for the
5
In the third quarter of 2010 alone, for example, more than 20 million
smartphones were reportedly sold in the United States, up from about 14.5 million
in the second quarter of 2010 and 9.7 million in the same quarter of 2009. (Bilton,
The Race to Dominate the Smartphone Market, N.Y. Times Bits Blog (Nov. 1,
2010) <http://bits.blogs.nytimes.com/2010/11/01/apple-and-google-excel-in-u-s-
smartphone-growth/> [as of Jan. 3, 2011]; Hamblen, OS War Has Android on Top
in U.S. Smartphone Sales
(Aug. 12, 2010) Computerworld
<http://www.computerworld.com/s/article/9180624/OS_war_has_Android_on_top
_in_U.S._smartphone_sales> [as of Jan. 3, 2011].)
4
warrantless search of a mobile phone must come from the possibility that the
arrestee might, during the arrest, destroy evidence stored on the phone.
Once a mobile phone has been seized from an arrestee and is under the
exclusive control of the police, the arrestee, who is also in police custody, cannot
destroy any evidence stored on it.6 At that point a search of its stored data would
seem to require a warrant, for “when no exigency is shown to support the need for
an immediate search, the Warrant Clause places the line at the point where the
property to be searched comes under the exclusive dominion of police authority.”
(Chadwick, supra, 433 U.S. at p. 15.) As the majority notes (maj. opn., ante, at
p. 8, fn. 6), no evidence of exigency was presented in this case — no evidence that
the text messages on defendant‟s phone were subject to imminent loss and could
not, in any event, be obtained from defendant‟s cellular provider.7

6
Defendant did not challenge the seizure of his phone, only the search of the
data stored on it. Nor do I contend the police needed a warrant or probable cause
to take defendant‟s phone from him and secure it. Once secured, the phone could
have been searched later if a warrant, founded on probable cause, issued for the
search.
7
At oral argument, the Attorney General noted that data on some
smartphones can be remotely wiped, which might allow an accomplice to destroy
evidence on the phone even while the arrestee remains in custody and the phone in
police control. As an argument for warrantless searching, this proves too much.
A suspect arrested in his or her home or office might also leave behind a computer
with evidence that could be destroyed by an accomplice while the arrestee is in
custody, but this possibility does not entitle police to search the contents of such
computers without probable cause or a search warrant. In either circumstance
(home computer or handheld computer) an immediate search without waiting for a
warrant might be desirable from the perspective of efficient policing, but “the
mere fact that law enforcement may be made more efficient can never by itself
justify disregard of the Fourth Amendment.” (Mincey v. Arizona (1978) 437 U.S.
385, 393.) In any event, it appears that remote wiping can be avoided by
removing the smartphone‟s battery and/or storing the phone in a shielded
container, as law enforcement officers are being trained to do. (See Grubb,
Remote Wiping Thwarts Secret Service, ZDNet (Australian ed., May 18, 2010)

(Footnote continued on next page.)
5


We are left, then, with the claim, accepted by the majority, that a mobile
phone, like clothing and other items carried on the arrestee‟s person, may, under
Edwards, be searched without a warrant even after the item has been secured and
the suspect taken into custody, if it could have been searched at the time and place
of arrest. (See Edwards, supra, 415 U.S. at pp. 803-804, 807-808.) As to clothing
and small physical containers, the law, in effect, indulges a fiction that an item that
was on the arrestee‟s person when he was detained is still on his person — and
thus vulnerable to destruction of evidence — notwithstanding that the arrestee is
safely in custody and the item securely in police control. (See New York v. Belton
(1981) 453 U.S. 454, 466 (dis. opn. of Brennan, J.) [characterizing holding in
Belton, which allowed a vehicle interior to be searched incident to arrest, as
resting on “a fiction—that the interior of a car is always within the immediate
control of an arrestee who has recently been in the car”]; Butterfoss, As Time Goes
By: The Elimination of Contemporaneity and Brevity as Factors in Search and
Seizure Cases (1986) 21 Harv.C.R.-C.L. L.Rev. 603, 625 [broadly read, Edwards
represented a “radical shift” in approach to the delayed-search problem, by which
an exigency exception to the traditional contemporaneity rule displaced the rule
itself].)
Beyond observing that the defendant in Edwards “was no more imposed
upon” than if his clothes had been taken from him earlier (Edwards, supra, 415
U.S. at p. 805), the Edwards court did not explain its reasons for allowing delayed
warrantless searches incident to arrest. In particular, the high court did not explain
(Footnote continued from previous page.)

<http://www.zdnet.com.au/remote-wiping-thwarts-secret-service-339303239.htm>
[as of Jan. 3, 2011].)
6
what police interest justified a delayed warrantless search once the arrestee and his
or her effects are safely in police control. But court of appeals decisions cited by
the high court (id. at pp. 803-804, fn. 4) suggest the rationale is to avoid
logistically awkward or embarrassing public searches. (See United States v.
Gonzalez-Perez (5th Cir. 1970) 426 F.2d 1283, 1287 [“The arresting officers are
not required to stand in a public place examining papers or other evidence on the
person of the defendant in order for such evidence to be admissible.”]; United
States v. DeLeo (1st Cir. 1970) 422 F.2d 487, 493 [“Were this not to be so, every
person arrested for a serious crime would be subjected to thorough and possibly
humiliating search where and when apprehended.”].) This rationale makes sense
as to an arrestee‟s actual person or clothing — the issue in Edwards — but its
applicability to items that are easily removed from the arrestee‟s possession and
secured by the police, such as mobile phones, is doubtful. With such items the
police choices are not limited to an awkward or cursory on-the-spot search or a
thorough warrantless search at the station house. Rather, the item can be taken
from the arrestee and securely held until (assuming probable cause for a search
exists) a warrant has issued. (See United States v. Monclavo-Cruz (9th Cir. 1981)
662 F.2d 1285, 1288 [delayed warrantless search of purse held unreasonable:
“The fact that an officer is prevented from conducting a Chimel/Belton search,
however, is not a sufficient reason to justify a search an hour later at the station.
The protective rationale for the search no longer applies.”].)
Recently, addressing the search of an arrestee‟s vehicle, the high court
rejected the fictional approach to justification of a search incident to arrest,
holding instead “that the Chimel rationale authorizes police to search a vehicle
incident to a recent occupant‟s arrest only when the arrestee is unsecured and
within reaching distance of the passenger compartment at the time of the search.”
(Arizona v. Gant, supra, __ U.S. at p. ___ [173 L.Ed.2d at p. 496, 129 S.Ct. at
7
p. 1719].) Just as the court in Gant adopted a narrow reading of New York v.
Belton, supra, 453 U.S. 454, so, too, some courts and commentators have
suggested a narrow reading of Edwards, in which delayed searches incident to
arrest would be per se valid only as to the arrestee‟s actual person or clothing
(which cannot easily be separated from the person at the time of arrest). (See
United States v. Schleis (8th Cir. 1978) 582 F.2d 1166, 1171 [disapproving station
house search of arrestee‟s locked briefcase]; Butterfoss, As Time Goes By: The
Elimination of Contemporaneity and Brevity as Factors in Search and Seizure
Cases, supra, 21 Harv.C.R.-C.L. L.Rev. at p. 626 [noting possibility of reading
Edwards as dependent on impossibility of taking arrestee‟s clothes until
replacement clothes were available at the jail].) Indeed, the defendant in Edwards
had objected, and the court of appeals had reversed his conviction, only on
grounds that the delayed warrantless seizure of his clothing violated the Fourth
Amendment to the United States Constitution. (Edwards, supra, 415 U.S. at
p. 802, italics added.) No issue was presented as to the delayed warrantless
seizure or search of a container carried by an arrestee.
Edwards nonetheless spoke broadly, and Chadwick suggests items beyond
clothing may be subject to delayed warrantless search if they are “immediately
associated with the person of the arrestee.” (Chadwick, supra, 433 U.S. at p. 15;
see also id. at p. 16, fn. 10 [describing Robinson (which involved search of a small
container), as well as Edwards, as a search “of the person”].) The majority thus
reasonably reads existing high court authority as permitting delayed warrantless
searches of containers immediately associated with an arrestee‟s person.
The question is whether the information stored on electronic devices such
as mobile phones, as at issue here, may be examined without a warrant under the
same rationale. For two reasons, I would hold it may not.
8
First, as suggested earlier, the amount and type of personal and business
information that can be stored on a mobile phone, smartphone or handheld
computer, and would become subject to delayed warrantless search under the
majority holding, dwarfs that which can be carried on the person in a spatial
container.8 As one federal district court observed in suppressing the fruits of a
mobile phone search, “modern cellular phones have the capacity for storing
immense amounts of private information. Unlike pagers or address books, modern
cell phones record incoming and outgoing calls, and can also contain address
books, calendars, voice and text messages, email, video and pictures. Individuals
can store highly personal information on their cell phones, and can record their
most private thoughts and conversations on their cell phones through email and
text, voice and instant messages.” (United States v. Park (N.D.Cal., May 23,
2007, No. CR 05-375 SI) 2007 U.S. Dist. Lexis 40596, *21-*22, fn. omitted.)
Smartphones, as we have seen, have even greater information storage capacities.
The United States Supreme Court‟s holdings on clothing and small spatial
containers were not made with mobile phones, smartphones and handheld
computers — none of which existed at the time — in mind. Electronic devices
“contain” information in a manner very different from the way the crumpled
cigarette package in Robinson contained capsules of heroin. (See Robinson,
supra, 414 U.S. at p. 223.) Electronic devices, indeed, are not even “containers”
within the meaning of the high court‟s search decisions. As the Ohio Supreme
8
The majority observes that substantial private information can be carried in
the nondigital forms of letters and diaries. (Maj. opn., ante, at p. 12.) Implicit in
the majority‟s argument is the assumption that police may not only take a letter or
diary from an arrestee and inventory it, but may, without a warrant, read through
all of its contents. Neither this court nor the United States Supreme Court has so
held.
9
Court, rejecting application of the container cases to a mobile phone, noted,
“[o]bjects falling under the banner of „closed container‟ have traditionally been
physical objects capable of holding other physical objects. Indeed, the United
States Supreme Court has stated that in this situation, „container‟ means „any
object capable of holding another object.‟ ” (State v. Smith (Ohio 2009) 920
N.E.2d 949, 954, quoting New York v. Belton, supra, 453 U.S. at p. 460, fn. 4.)9
Second, the grounds for deeming an arrestee to have lost privacy rights in
his or her person do not apply to the privacy interest in data stored on electronic
devices. In Robinson, the Supreme Court, quoting with approval from a New
York case, explained that while warrantless searches of the person are ordinarily
unlawful, “ „[s]earch of the person becomes lawful when grounds for arrest and
accusation have been discovered, and the law is in the act of subjecting the body of
the accused to its physical dominion.‟ ” (Robinson, supra, 414 U.S. at p. 232,
italics added.) In Edwards, the court reasoned that where the state has lawfully
taken a person into custody, though not all his privacy interests are destroyed, the
9
The Belton court stated: “ „Container‟ here denotes any object capable of
holding another object. It thus includes closed or open glove compartments,
consoles, or other receptacles located anywhere within the passenger
compartment, as well as luggage, boxes, bags, clothing, and the like.” (New York
v. Belton
, supra, 453 U.S. at pp. 460-461, fn. 4.) As Belton clearly spoke only of
objects physically containing other objects, the majority‟s reliance on that case for
the proposition that any “container,” whatever the extent of the arrestee‟s
expectation of privacy in it, may be searched incident to arrest (maj. opn., ante, at
p. 11) is misplaced when it comes to mobile phones and other electronic
communication and data storage devices. Still less on point is United States v.
Ross
(1982) 456 U.S. 798, which did not even involve a search incident to arrest.
That the high court in Ross declined to distinguish among probable cause searches
of “paper bags, locked trunks, lunch buckets, and orange crates” carried in
automobiles (id. at p. 822) hardly requires that an arrestee‟s mobile phone,
smartphone or handheld computer be treated the same as clothing or a crumpled
cigarette package.
10
arrest “ „does—for at least a reasonable time and to a reasonable extent—take his
own privacy out of the realm of protection from police interest in weapons, means
of escape, and evidence.‟ ” (Edwards, supra, 415 U.S. at pp. 808-809, italics
added.) Citing Robinson and Edwards, the court subsequently distinguished
“searches of the person,” in which the arrest created a “reduced expectation[] of
privacy,” from searches of the possessions within an arrestee‟s control.
(Chadwick, supra, 433 U.S. at p. 16, fn. 10.)
The warrantless search of an arrestee‟s person thus rests on a relatively
simple, intuitively correct idea: the police, having lawful custody of the
individual, necessarily have the authority to search the arrestee‟s body and seize
anything of importance they find there. Having been lawfully arrested, with his or
her person under the custody and control of the police, the individual can no
longer claim in full the personal privacy he or she ordinarily enjoys. It does not
follow, however, that the police also have “ „dominion‟ ” (Robinson, supra, 414
U.S. at p. 232) over the entirety of stored messages, photographs, videos,
memoranda and other records an arrestee may be carrying on a mobile phone or
smartphone. An individual lawfully arrested and taken into police custody
necessarily loses much of his or her bodily privacy, but does not necessarily suffer
a reduction in the informational privacy that protects the arrestee‟s records. That
an arrestee‟s interest in his or her “ „own privacy‟ ” (Edwards, supra, 415 U.S. at
p. 809) is severely reduced does not imply a corresponding reduction in privacy of
personal and business data. Even when they happen to be stored on a device
carried on the person, these records are clearly distinct from the person of the
arrestee.
Because the data stored on a mobile phone or other electronic device is
easily distinguished from the arrestee‟s actual person, and in light of the
extraordinary potential for invasion of informational privacy involved in searching
11
data stored on such devices, I would hold mobile phones, smartphones and
handheld computers are not ordinarily subject to delayed, warrantless search
incident to arrest. In the terms provided by the existing United States Supreme
Court authority, search of the information stored on an arrestee‟s mobile phone or
similar device should be treated as the search of an item “within an arrestee‟s
immediate control” rather than a search “of the person.” (Chadwick, supra, 433
U.S. at p. 16, fn. 10.) Once an arrestee‟s mobile phone or similar device is
securely “under the exclusive dominion of police authority” (id. at p. 15), the
arrest itself no longer serves to authorize a warrantless search of its stored data.
This is not to say police may never examine or search an arrestee‟s mobile
phone without a warrant. Devices carried on the arrestee‟s person may be seized
and secured. Some examination of the device, not amounting to a search of its
data folders, might also be reasonable. (See, e.g., U.S. v. Wurie (D.Mass. 2009)
612 F.Supp.2d 104, 106-107 [when arrestee‟s mobile phone rang, officer flipped it
open and observed originating number and “wallpaper” photograph, which led to
discovery of arrestee‟s residence address].) And where the arresting officers have
reason to fear imminent loss of evidence from the device, or some other exigency
makes immediate retrieval of information advisable, warrantless examination and
search of the device would be justified. (See, e.g., United States v. Lottie
(N.D.Ind., Jan. 14, 2008, No. 3:07cr51RM) 2008 U.S. Dist. Lexis 2864, *9
[officers had reason to believe that accomplices in large drug transaction,
“unknown but potentially present and armed,” were conducting
countersurveillance of the police operation, raising concern for safety of officers
and the public].)
The majority‟s holding, however, goes much further, apparently allowing
police carte blanche, with no showing of exigency, to rummage at leisure through
12

the wealth of personal and business information that can be carried on a mobile
phone or handheld computer merely because the device was taken from an
arrestee‟s person. The majority thus sanctions a highly intrusive and unjustified
type of search, one meeting neither the warrant requirement nor the reasonableness
requirement of the Fourth Amendment to the United States Constitution. As a
commentator has noted, “[i]f courts adopted this rule, it would subject anyone who
is the subject of a custodial arrest, even for a traffic violation, to a preapproved
foray into a virtual warehouse of their most intimate communications and
photographs without probable cause.” (Orso, Cellular Phones, Warrantless
Searches, and the New Frontier of Fourth Amendment Jurisprudence, supra, 50
Santa Clara L.Rev. at p. 211.) United States Supreme Court authority does not
compel this overly permissive rule, and I cannot agree to its adoption.
WERDEGAR, J.
I CONCUR:
MORENO, J.
13

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Diaz
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 165 Cal.App.4th 732
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S166600
Date Filed: January 3, 2011
__________________________________________________________________________________

Court:

Superior
County: Ventura
Judge: Kevin J. McGee

__________________________________________________________________________________

Counsel:

Lyn A. Woodward, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Donald E. DeNicola, Deputy State Solicitor General, Lawrence M.
Daniels, Paul M. Roadarmel, Jr., and Victoria B. Wilson, Deputy Attorneys General, for Plaintiff and
Respondent.


1



Counsel who argued in Supreme Court (not intended for publication with opinion):

Lyn A. Woodward
P.O. Box 51545
Pacific Grove, CA 93950
(831) 375-1191

Victoria B. Wilson
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2357

2


Petition for review after the Court of Appeal affirmed a judgment of conviction of a criminal offense. This case presents the following issues: (1) Was defendant's cell phone an item "immediately associated with the person of the arrestee" within the meaning of United States v. Edwards (1974) 415 U.S. 800, and thus subject to search incident to his arrest? (2) Was the warrantless search of the cell phone an hour and a half after the arrest, while defendant was being interrogated, invalid under United States v. Chadwick (1977) 433 U.S. 1? The court ordered briefing deferred pending the decision of the United States Supreme Court in Arizona v. Gant, No. 07-542, cert. granted Feb. 25, 2008, __ U.S. __ [128 S.Ct. 1443, 170 L.Ed.2d 274], or further order of this court.

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 01/03/201151 Cal. 4th 84, 244 P.3d 501, 119 Cal. Rptr. 3d 105S166600Review - Criminal Appealsubmitted/opinion due

Parties
1The People (Plaintiff and Respondent)
Represented by Victoria B. Wilson
Office of the Attorney General
300 S. Spring Street, Suite 5212
Los Angeles, CA

2Diaz, Gregory (Defendant and Appellant)
9812 Vidor Drive, #301
Los Angeles, CA 90025

Represented by Lyn A. Woodward
Attorney at Law
309 Prescott Lane
Pacific Grove, CA


Opinion Authors
OpinionJustice Ming W. Chin
ConcurJustice Joyce L. Kennard
DissentJustice Kathryn M. Werdegar

Dockets
Sep 9 2008Petition for review filed
  Gregory Diaz, appellant by Lyn A. Woodward, counsel crc.8.25(b)
Sep 9 2008Record requested
 
Sep 15 2008Received Court of Appeal record
  one doghouse
Oct 28 2008Review granted/briefing deferred (8.512(d)(2) criminal case)
  The petition for review is granted. Further action in this matter is deferred pending the decision of the United States Supreme Court in Arizona v. Gant, No. 07-542, or pending further order of the court. Submission of additional briefing, pursuant to California Rules of Court, rule 8.520, is deferred pending further order of the court. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Nov 12 2008Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Lyn A. Woodward is hereby appointed to represent appellant on the appeal now pending in this court.
Jun 10 2009Briefing ordered in previously Held case
  The petition for review in this matter was granted on October 28, 2008, and further action was deferred pending the United States Supreme Court's decision in Arizona v. Gant, No. 07-542. The decision in that matter has been filed. (Arizona v. Gant (Apr. 21, 2009, No. 07-542) __ U.S. __ [77 U.S.L. Week 4285, 2009 WL 1045962].) Petitioner in the present case is now directed to serve and file, within 30 days of the filing of this order, an opening brief on the merits. Within 30 days of the filing of that brief, respondent shall serve and file an answer brief. Within 20 days of the filing of that brief, petitioner may file a reply brief to respondent's answer. (Cal. Rules of Court, rule 8.520.)
Jul 10 2009Request for extension of time filed
  counsel for aplt. (Diaz) requests extension of time to August 9, 2009, to file the opening brief on the merits.
Jul 14 2009Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's opening brief on the merits is hereby extended to and including August 10, 2009.
Aug 6 2009Request for extension of time filed
  Gregory Diaz, appellant,requests until August 20, 2009, to file the opening brief on the merits, by Lyn A. Woodward, counsel.
Aug 7 2009Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the Opening Brief on the Merits is extended to and including August 20, 2009.
Aug 21 2009Opening brief on the merits filed
Defendant and Appellant: Diaz, GregoryAttorney: Lyn A. Woodward   (8.25(b))
Sep 15 2009Request for extension of time filed
  The People, Plaintiff and Respondent, Deputy Attorney General Victoria B. Wilson, to file Answer Brief on the Merits to October 19, 2009
Sep 22 2009Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including October 19, 2009.
Oct 14 2009Request for extension of time filed
  to file answer brief to 11-18-09
Oct 20 2009Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including November 18, 2009. No further extensions of time are contemplated.
Nov 17 2009Answer brief on the merits filed
Plaintiff and Respondent: The PeopleAttorney: Victoria B. Wilson  
Dec 7 2009Request for extension of time filed
  counsel for appellant requests extension of time to December 14, 2009, to file the reply brief on the merits.
Dec 11 2009Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including December 14, 2009.
Dec 15 2009Reply brief filed (case fully briefed)
Defendant and Appellant: Diaz, GregoryAttorney: Lyn A. Woodward   (8.25(b))
Sep 7 2010Case ordered on calendar
  to be argued Tuesday, October 5, 2010, at 9:00 a.m., in Fresno (at Court of Appeal, Fifth Appellate District, 2424 Ventura Street)
Sep 20 2010Supplemental brief filed
Plaintiff and Respondent: The PeopleAttorney: Victoria B. Wilson   notice of additional authorities from Victoria B. Wilson, supervising deputy attorney general.
Sep 27 2010Supplemental brief filed
Defendant and Appellant: Diaz, GregoryAttorney: Lyn A. Woodward  
Oct 5 2010Cause argued and submitted
 
Dec 30 2010Notice of forthcoming opinion posted
  To be filed Monday, January 3, 2011 @ 10 a.m.

Briefs
Aug 21 2009Opening brief on the merits filed
Defendant and Appellant: Diaz, GregoryAttorney: Lyn A. Woodward  
Nov 17 2009Answer brief on the merits filed
Plaintiff and Respondent: The PeopleAttorney: Victoria B. Wilson  
Dec 15 2009Reply brief filed (case fully briefed)
Defendant and Appellant: Diaz, GregoryAttorney: Lyn A. Woodward  
Brief Downloads
application/pdf icon
diaz-appellants-petition-for-review.pdf (297164 bytes) - Appellant's Petition For Review
application/pdf icon
diaz2-respondents-answer-to-petition-for-review.pdf (135858 bytes) - Respondent's Answer to Petition For Review
application/pdf icon
diaz3-appelllants-opening-brief-on-the-merits.pdf (281746 bytes) - Appellant's Opening Brief on the Merits
application/pdf icon
diaz3-respondents-answer-brief-on-the-merits.pdf (372370 bytes) - Respondent's Answer Brief on the Merits
application/pdf icon
diaz4-appellants-reply-brief-on-the-merits.pdf (103172 bytes) - Appellant's Reply Brief on the Merits
application/pdf icon
S166600-bgsummary.pdf (13028 bytes) - Background Summary
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Jan 24, 2011
Annotated by hlommersjohnson

FACTS
On April 25, 2007, the defendant, Gregory Diaz, participated in the sale of Ecstasy along with a police informant. Diaz drove the dealer to the location of the sale and sat in the driver’s seat as the sale took place at approximately 2:50 p.m. in the back seat of the car. The informant was wearing a wire and Senior Deputy Sheriff Victor Fazio listened in remotely on the sale. Then, Fazio stopped Diaz’s car and arrested Diaz. Diaz was taken to the sheriff’s station, at which point a detective seized Diaz’s phone and gave it to Fazio.

At 4:18 p.m. Fazio questioned Diaz, who denied having knowledge of the drug sale. At 4:23, Fazio went through Diaz’s phone’s test messages and found one that said “6 4 80,” which he interpreted as “six pills of Ecstacy for $80.” Upon showing this message to Diaz, Diaz admitted to participating in the drug sale, and was charged with selling a controlled substance under Health & Saf. Code, §11379.

Diaz pled not guilty and moved to suppress his confession as a fruit of an unlawful search. Diaz argued that the search of his cell phone constituted a warrantless search in violation of the Fourth Amendment.

PROCEDURAL HISTORY
The trial court denied the motion to suppress. The court ruled that search of the cell phone qualified as a search incident to arrest, whereby evidence and instrumentality of a crime, if found, are admissible and no warrant is required.

Diaz withdrew his not guilty plea and pled guilty to transportation of a controlled substance. The trial court accepted his plea, suspended imposition of a sentence and put Diaz on probation for three years.

The Court of Appeal affirmed the trial court’s denial of the motion to suppress because the cell phone was immediately associated with Diaz’s person at the time of arrest and thus no warrant was necessary to subject it to a delayed search incident to arrest.

ISSUE
Is it a violation of the Fourth Amendment to perform a warrantless search on a cell phone 90 minutes after arrest where the cell phone had been carried on a suspect at the time of arrest?

HOLDING
The California Supreme Court affirmed the judgment of the Court of Appeal denying motion to suppress.

ANALYSIS
The Court held that the cell phone was lawfully subjected to a search incident to arrest, which falls into one of the exceptions to the Fourth Amendment’s warrant requirement. The Court emphasized that although the U.S. Supreme Court has articulated that the justifications for search incident to arrest are officer protection and preservation of evidence, Supreme Court precedent has determined that warrantless searches of arrestees and the area within their immediate control are constitutional, even if no probable cause exists that either of these justifications are present at the time of the search. Because the cell phone was within the immediate control of Diaz when he was arrested, and because U.S. Supreme Court precedent has established that delayed searches incident to arrest are valid, the Court held that the cell phone search was constitutional.

Specifically, the Court held that three Supreme Court cases are controlling here. First, the Court applied United States v. Robinson, 414 U.S. 218 (1973) for the holding that only a lawful arrest is necessary to justify a search incident to arrest of any item on the defendant’s person. In Robinson the Supreme Court had upheld the search of a cigarette container (holding heroin) in the defendant’s pocket as a valid search incident to arrest, where the arrest was for driving with a revoked permit. Like in Robinson, where it was still a valid search despite the fact that there were no justifiable concerns that the cigarette package contained a weapon or evidence of the arrest crime, the Court held that the search of Diaz’s sell was automatically justified by his lawful arrest.

Second, the Court applied United States v. Edwards, 415 U.S. 800 (1974) to hold that 90 minutes or more between arrest and search “is not too remote in time to qualify as a search incident to arrest.” In Edwards, 10 hours after being arrested for an attempted break-in, the police performed a valid search and seizure of the defendant’s clothes “incident to arrest” so that physical evidence like paint chips on the clothes would not be lost.

Third, the Court applied United States v. Chadwick, 433 U.S. 1 (1977) for the holding that all “personal property . . . immediately associated with person of the arrestee” can lawfully be searched incident to arrest. The Court ruled that unlike the footlocker in Chadwick that had been in the trunk of the defendant’s car and thus was held not immediately associated with the person of the arrestee and invalid to search incident to arrest, Diaz’s cell phone was immediately associated with Diaz’s person because it was on his body, much like Edward’s clothes and the cigarette container in Robinson’s pocket. The Court concluded that the fact that an item was on an arrestee’s body at the time of arrest and thus immediately associated with the arrestee’s person is alone sufficient to justify a delayed search incident to arrest of the item.

The Court then responded to arguments by Diaz and the dissent. First, in response to the contention that the character of a cell phone is distinct from Robinson’s cigarette package and Chadwick’s footlocker and that the character of the item should control, not whether it is carried on the arrestee’s person, the Court argued that the U.S. Supreme Court does not have cases that distinguish on the basis of the character of the item to be searched. To support this point, the Court cites United States v. Ross, 456 U.S. 798 (1982) for the Supreme Court’s reasoning that the type of package does not matter in when conducting a car search with probable cause, because all packages may be searched. The Court also cites New York v. Belton, 453 U.S. 454 (1981) for the Supreme Court’s assertion that greater expectation of privacy of particular containers within cars does not exempt them from warrantless searches incident to arrest.

Specifically, the Court addressed the dissent’s and defendant’s contention that the storage capacity of a cell phone gives it a unique character that distinguishes it from the items in Robinson and Edwards. The Court responded that there is no evidence in the record that Diaz's phone has particularly large storage capacity, and that even if there had been, it is not clear why this should matter. The Court also emphasized that distinguishing between items based on their storage capacity would create line drawing problems for police and courts. The Court noted that the U.S. Supreme Court articulated the need for a predictable, easily enforceable rule in Robinson.

Second, the Court rejected the defendant’s argument that while the phone was on his immediately body, the data within the phone was not, and thus could not be searched incident to arrest. The Court responded that regardless of whether the data was on Diaz’s immediate body, Supreme Court precedent establishes that items on the body can be opened and examined. It was the cell phone’s location on his immediate body that justified the opening and searching of the phone itself and the exposure of the data contained within, not the location of the data on his body.

Third, the Court rejected the dissent’s argument that a cell phone is not a container within the Supreme Court’s intended meaning of the word, because it is not the fact that it is a container that matters for the application of Robinson, Edwards and Chadwick, but that it is property immediately associated with the arrestee's person.

Fourth, the Court responded to the dissent’s contention that the Supreme Court’s rationale for search incident to arrest (officer safety and preservation of evidence) does not apply here by asserting that the Supreme Court has made clear that delayed searches incident to arrest are still justified even though there are none of the exigency concerns usually associated with searches incident to arrest.

CONCURRENCE
Acting Chief Justice Kennard concurred. Justice Kennard agreed with the judgment of the court, but wrote separately to emphasize that it is possible that the Supreme Court did not have cell phones in mind when creating the rule that all items immediately associated with the arrestee’s person can be searched incident to arrest. However, if even this is true, Justice Kennard’s opinion asserts that the Supreme Court has warned in Rodriguez de Quijas v. Shearson/Am. Exp. 490 U.S. 477, 484 (1989) that courts must continue following existing precedent until the Supreme Court changes it, even if revisions are anticipated.

DISSENT
Justice Werdegar dissented from the majority opinion. Justice Werdegar argues that cell phones are inherently different from the cigarette package and clothes in Robinson and Edwards and should not be subject to warrantless searches incident to arrest.

First, the dissent argues that the justifications of searches incident to arrest (officer safety and preservation of evidence) do not apply when an item is under exclusive control of the police, as it was at the time of the search. This distinguishes the phone from the clothing in Edwards where the destruction of evidence (paint chips on the clothing) was still a concern because the clothes were still on Edwards at the time of the search and seizure.

Second, the dissent argues that the Supreme Court did not have cell phones and the amount of information that can be searched on a phone in mind when they created the Robinson rule.

Third, the dissent contends that arrest only justifies a loss of privacy of the arrestee’s body, but cannot justify a loss of privacy in electronic data, which is easily distinguishable from the body and which contains so much information.

TAGS
Search and Seizure, Fourth Amendment, Warrant Requirement, Privacy, Expectation of Privacy, Electronics, Cell Phones, Search Incident to Arrest, Preservation of Evidence, Warrantless Search, Car Searches, Container Searches, Probable Cause, Motion to Suppress, Fruit of the Poisonous Tree Doctrine, Ecstasy, Informant, Delayed Search

KEY RELATED CASES
United States v. Robinson, 414 U.S. 218 (1973). [A search of a cigarette container in an arrestee’s pocket is a valid search incident to arrest.]
United States v. Edwards, 415 U.S. 800 (1974). [A search performed ten hours later and at the police station is not too remote in time or place to make it invalid as a search incident to arrest.]
United States v. Chadwick, 433 U.S. 1 (1977). [A locked footlocker in an arrestee’s trunk is not subject to search incident to arrest because it is not immediately associated with the arrestee’s person or within the arrestee’s control.]
United States v. Ross, 456 U.S. 798 (1982). [The validity of a search of a container within a car with probable cause does not depend on the type of packaging.]
New York v. Belton, 453 U.S. 454 (1981). [Any package within passenger area of a car is subject to search incident to arrest regardless of the level of privacy interest in that package.]
Rodriguez de Quijas v. Shearson/Am. Exp. 490 U.S. 477, 484 (1989). [All courts are bound by Supreme Court precedent even when they anticipate a change of applicable precedent.]

Hannah Lommers-Johnson

Jan 24, 2011
Annotated by emurphy

General Summary

A cell phone seized from a lawfully arrested person may be searched without a warrant even 90 minutes after the arrest.

Facts

On April 27th, 2007, Defendant Gregory Diaz was arrested after participating in the sale of Ecstasy to a police informant. Diaz was taken to the police station, where his cell phone was seized and the arresting officer began interrogating Diaz about the drug transaction, and Diaz denied knowledge. A few minutes later, the arresting officer searched the text message folder of Diaz’s phone and confronted Diaz with an incriminating message, at which point Diaz admitted to participating in the sale of Ecstasy. The search of Diaz’s phone took place approximately 90 minutes after his arrest.

Procedural history

Diaz was charged with selling a controlled substance, pleaded not guilty and moved to suppress the “fruits” of the cell phone search: the text message and his incriminating statements. The trial court denied the motion, at which point Diaz withdrew his not guilty plea and pleaded guilty, receiving a sentence of three year’s probation. The Court of Appeals affirmed.

Issue

Does the search incident to arrest exception to the Fourth Amendment’s warrant requirement permit police to search the cell phone seized from a lawfully arrested defendant approximately 90 minutes after the arrest?

Holding (5-2)

Under current U.S. Supreme Court precedent, a cell phone on a person at the time of arrest may be searched without a warrant. Such a search is valid as incident to a lawful arrest.

Analysis

The California Supreme Court strictly applied U.S. Supreme Court precedent to reach the decision, holding that because the cell phone was an object found on the person, that it was subject to warrantless search incident to lawful arrest. The analysis relied heavily on three cases from the 1970s: Robinson, Edwards, and Chadwick. In Robinson, the Supreme Court upheld the warrantless search of a cigarette packet found in an arrestee’s pocket. In Edwards, the warrantless search of an arrestee’s clothes ten hours after arrest was also valid. In Chadwick, however, a locked truck could not be searched an hour after arrest without a warrant, because it was distinguished as an item of personal property, rather than a search of the person (as in the Robinson and Edwards searches). The California Supreme Court held that the cell phone, being on the person at the time of arrest, was analogous to the cigarette package or clothes and thus part of the person subject to a reduced expectation of privacy after arrest, rather than being an item of separate property (like the locked trunk in Chadwick).

In so holding, the California Supreme Court rejected the Defendant’s argument that the scope of a search incident to arrest should be bounded by privacy expectations due to the nature and quantity of data that could be contained in a cell phone. Rather, the majority opinion takes a formalist approach to reasoning from Supreme Court precedent, and dismisses the privacy issue as non-persuasive because after Robinson and Edwards, the act of arrest already reduces a person’s reasonable expectation of privacy in his person and immediately associated personal effects. The strong dissent, however, supports the Defendant’s arguments that the character of an item or object seized from an arrestee may determine the scope of a warrantless search, and that the content of a cell phone is distinct from the content of other physical containers in a meaningful way with respect to the Fourth Amendment and search incident to arrest doctrine.

The majority opinion concludes with what could be read as an invitation to the Supreme Court to consider the issue: that if “the wisdom of the high court’s decisions ‘must be newly evaluated’ in light of modern technology (dis. opn. of Werdegar, J.), then that reevaluation must be undertaken by the high court itself.” There now exists a split between state supreme courts on this issue (see State v. Smith, 920 N.E.2d 949 (Ohio 2009), cert. denied 131 S.Ct. 102 (2010)), with federal courts also having taken both sides of the issue (see United States v. Finley, 477 F.3d 250 (5th Cir. 2007), cf. United States v. Park, No. CR 05-375 SI 2007 U.S. Dist. Lexis 40596 (N.D.Cal., May 23, 2007).

Disposition

The Court of Appeals judgment upholding Defendant’s sentence is affirmed.

Cited cases

United States v. Robinson, 414 U.S. 218 (1973)

United States v. Edwards, 415 U.S. 800 (1974)

United States v. Chadwick, 433 U.S. 1 (1977)

United States v. Ross, 456 U.S. 79 (1982)

New York v. Belton, 453 U.S. 454 (1981)

State v. Smith, 920 N.E.2d 949 (Ohio 2009)

Tags

cell phone, fourth amendment, search incident to arrest, warrant, privacy, container, digital search, personal property, warrantless, suppression, exclusion

Annotation by Emily Murphy