California Legislature Requires Warrant for Cell Phone Searches

Overturning a California Supreme Court decision to the contrary, the California Legislature has required police to get warrants supported by probable cause to search people’s cell phones. During an automobile stop, police can easily search most vehicles based on the legally diminished privacy interest in these stops. Because of the mobility of automobiles and open nature of a passenger compartment, police have a variety of tools that can get them into the car. This includes protective searches, searches incident to an arrest, inventory searches, and “protective frisks.”

Our smart phones carry all sorts of personal information. In many ways, the thoughts in these devices are more personal than the thoughts an individual wrote in their diary (an area of law where the US Supreme Court had historically afforded significant privacy interests. Should the police be able to browse through these to their heart’s content? A number of software companies are offering tools that allow even the ordinary traffic cop to easily break through passwords on these phones search these portable computers to their hearts content. The California legislation is an important piece of legislation which the MIchigan Legislature should emulate with one exception. The statutory search incident to an arrest exception will encourage pretext arrests and makes no sense. Once the individual is in custody, there is no impediment to getting the warrant.