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
__________________________________ )


STORY CONTINUE FROM PART I….


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 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.^[1]
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. ^[2]

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.

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 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, 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.

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.^[3]
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 smartphone^[4] 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.^[5] Never before has it been possible to 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.^[6] 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 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.”].)^[7] 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 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.^[8] 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.^[9]
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 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 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.
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.^[10] 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 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.)^[11]
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 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 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


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.

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.












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


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