The California Supreme Court has held that police may search the contents of a cell phone incident to arrest. The case is People v. Diaz.
The Court disagrees with the conclusion I reach in (shortly) forthcoming a law review article. Comments about this "very cool" issue are all over the blog.
The Diaz case involved a controlled purchase of drugs to an informant by the defendant. The defendant was arrested. At the Sheriff's station, a detective seized his cell phone. The police later searched the phone's text messages and discovered a text allegedly setting up the deal. When confronted with this message, the defendant confessed to selling drugs
The government claimed that the search of the phone was legal based on the :search incident to arrest" doctrine. Under this doctrine, the police can search an arrestee, and the area within the immediate control of the arrestee, for weapons and objects that might aid an escape. The police may also search for evidence of the crime, on the theory that the arrestee might otherwise destroy the evidence. This doctrine has been extended to allow the search of physical containers found in the possession of an arrestee, including wallets, purses, and address books. In the electronic age, this container doctrine was originally extended to include the contents of a pager.
Even "small spatial container[s]" that hold less information than cell phones may contain highly personal, intimate and private information, such as photographs, letters, or diaries. If . . . "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", then travelers who carry sophisticated cell phones have no greater right to conceal personal information from official inspection than travelers who carry such . . . information in "small spatial container[s]." And if, . . . 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, 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. . . .The California court also expressed a concern that courts would have difficulty determining whether the storage capacity of a particular electronic device would be "constitutionally significant."
The final analysis from the court is that an arrest triggers a "loss of privacy" that extends to "beyond the arrestee's body to include personal property." The California court explicitly declined to follow the Ohio Supreme Court.
I think the California court missed an opportunity here. I will post more analysis, and some links to comments from others, later.