California Governor Veto Allows Warrantless Cellphone Searches

October 11, 2011

California Gov. Jerry Brown is vetoing legislation requiring police to obtain a court warrant to search the mobile phones of suspects at the time of any arrest. Because of that January ruling from the state’s high court, the California Legislature passed legislation to undo it — meaning Brown is taking the side of the Supreme Court’s seven justices instead of the state Legislature. The U.S. Supreme Court denied cert last week in Diaz v. California, a Fourth Amendment case from California’s Supreme Court which held that a cell phone can be searched incident to arrest. The Assembly approved the bill 70-0 and the state Senate, 32-4. The bill’s sponsor, Sen. Mark Leno (D-San Francisco), was flummoxed by Brown’s action. “It was a curious veto message suggesting that the courts could resolve this more effectively than the state Legislature,” he said in a telephone interview. Under California statehouse rules, neither Leno nor any other lawmaker may introduce the legislation for at least a year.

Northrop v. Trippett (6th Cir. 2001) 265 F.3d 372, 379: When conducting a search incident to arrest, police may search items within the “immediate control” of the person arrested.

(Wired) Cops Need Warrant for Cellphone Location Data, according to Judge Terrence McVerry of the Western Pennsylvania U.S. District Court on September 11, 2008. The Obama administration’s position that the government can force mobile carriers to hand over cellphone tower location information on their customers without a warrant is wrong, two legal scholars say. scholars Susan Freiwald, of the USF School of Law, and Peter Swire, of Ohio State University wrote: “Because CSLI acquisition is hidden, indiscriminate and intrusive, and because it reveals information over a period of time, it should be subject to the highest level of Fourth Amendment oversight (the same procedures used for wiretapping and video surveillance),” Their words, published by the American Constitution Society, came a month after the Justice Department made its claim in a little-noticed case that the Fourth Amendment right to be free from unreasonable searches and seizures did not apply. In April 20, 2009 Scholars Rejected Obama’s Stance on Warrantless Cell-Phone Records